Lord Drayson: My Lords, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of all those killed and injured in operations over the Recess.
	Troop movement is generally working well. Between April and December 2006, 80 per cent of strategic air transport flights were on time or delayed by less than three hours. For Iraq this figure was86 per cent and for Afghanistan it was 75 per cent. Recent improvements include refurbishing the runway at Kandahar airfield, which was completed in November 2006. This now allows troops to fly direct rather than via Kabul, which reduces journey times and increases C130 availability.

Baroness Royall of Blaisdon: My Lords, the Government expect that targeted measures against Zimbabwe will be renewed in February. Since their rollover last February, the situation in the countryhas only worsened: peaceful demonstrations have been violently disrupted, the economy continuesto be grossly mismanaged and the opposition and independent media remain suppressed. Until democracy, the rule of law and full human rights are restored in Zimbabwe, it is right that Mugabe and his regime should continue to be isolated by the international community.

Lord Blaker: My Lords, can the Minister say whether there is any substance in media reports of the past few weeks that a number of European Union countries, particularly Portugal and France, are in favour of abandoning the sanctions? Have not the people of Zimbabwe shown enormous courage inthe past few weeks in demonstrating peacefully on the streets against the Mugabe regime? They have suffered from being thrown into prison cells and having their legs broken and have been beaten up.
	Is it not also true that other countries have subscribed to the sanctions against Mugabe which the European Union has adopted? Does that not mean that if sanctions were to be abandoned, we would be letting down both those countries and the people of Zimbabwe with whom we should have solidarity? The European Union would be letting itself down by spoiling its own reputation and authority in the wider world.

Lord Kinnock: My Lords, will my noble friend confirm the importance of sustaining the established and consistent policy, both of Her Majesty's Government and the European Union, on targeted measures against the Mugabe regime? Will she and her ministerial colleagues try to ensure that thereis no breach of established policy under any EU presidency? Is my noble friend aware that if, for instance, Mugabe were to go to Portugal for the EU-Africa conference in the second half of this year, it would hold up the EU policy to derision and give his regime an unwarranted propaganda victory? That would hugely dismay and demoralise the courageous members of the Movement for Democratic Change, who are trying to secure peaceful change in their country. Consistency is essential; consistency from the whole Union is vital.

Baroness Whitaker: My Lords, in view of the fact that the EU sends the lion's share of the international community's $250 million aid to Zimbabwe, most of which goes on emergency feeding programmes, would it not be irresponsible to expect the people of the EU to continue to provide aid at that level and yet lift restrictions on those who engineered the disasters that that aid is meant to respond to? Will my noble friend and the other members of the Government remind our more reluctant EU allies of the huge amountof humanitarian aid needed as a result of the Zimbabwean regime's wanton destruction of housing, industry and agriculture?

Lord Alton of Liverpool: My Lords, will the noble Baroness ensure that in discussions with our European Union colleagues the depredations of the regime are not lost sight of, not least the reductionin life expectancy in Zimbabwe, especially among women, and the levels of child mortality and malnutrition in the country? Will she ensure that the remarks of the Archbishop of Bulawayo, who spoke to Members of both Houses just before Christmas, are drawn to their attention? He said that while the regime continues its depredations against the people of Zimbabwe then the targeted restrictions should continue.

Baroness Royall of Blaisdon: Yes, my Lords, it is indeed deplorable that life expectancy in Zimbabweis the lowest in the world at present. I believe it is34 years for women and 37 years for men, which is quite extraordinary. It is incumbent on us in the European Union to make those abominable facts known to the widest possible community and to ensure that sanctions are maintained. We keep repeating that in our discussions with our European partners.

Baroness Royall of Blaisdon: Yes, my Lords, I can ensure that the Government will do their utmost to ensure that the loopholes are minimised. It is extraordinary that such loopholes exist, but they do. The EU Zimbabwe travel ban contains standard exemptions that enable travel to the EU by banned Zimbabweans in a few, narrowly defined cases. We do our utmost to ensure that they are narrowly defined, because to see people such as Grace Mugabe stomping up and down the streets of the Côte d'Azur is an affront to humanity.

Earl Howe: It is a pleasure for me to begin these Committee proceedings by issuing a very warm welcome to the noble Lord, Lord Hunt of Kings Heath, whom I congratulate on behalf of all noble Lords on his appointment as Minister of State at the Department of Health. We wish him well there—it is familiar territory to him—and I am sure that it will not take him long to make his mark there once again. For us on this side of the Committee, it suddenly feels like old times.
	We begin our Committee debates with an extremely important amendment which, I venture to suggest, will come as no surprise to the Minister. It would insert a set of key principles into the Mental Health Act 1983. Why this idea is so important can be explained very simply. The Mental Health Act and this amending Bill are not in any sense run-of-the-mill measures. They have two features about them which place them in a class apart from most other legislation: the powers granted to the state and its employees to coerce individuals who are not criminals into being detained and treated, and the fact that those individuals are, almost by definition, some of the most vulnerable of our citizens. The ethical standards governing that key interaction, between state and individual, are not some sort of subsidiary add-on; they are integral to the basic acceptability of the legislation. The principles defining those ethical standards deserve a place at the heart of the Act because it is only in that way that Parliament can signal to practitioners, patients and the legal profession how it wants the Act to be interpreted and implemented. Interpretation and implementation need to be in all our minds from the outset.
	The Bill is full of tensions. We will deal with those tensions, I am sure, repeatedly. The most glaring tension is that between patient autonomy on the one hand and public safety on the other, but there is another tension pulling in a third direction: the need to make certain that mental health services remain trusted by service users. To achieve that, we have to ensure not just that coercive powers are used only as a last resort, but also that the ways in which those powers are used are not excessive in any given set of circumstances. By placing these very sensitive measures within a framework of overarching principles, the Bill will be more effective in protecting patients and the public. Why? Because if you makeit crystal clear to everybody that the rules of compulsion are underpinned by values, and that because of those values there are times when compulsion is appropriate and times when it is not, you will have legislation that is much clearer and much more likely to command universal respect.
	During the past few years of discussion on the two draft Bills there has been much debate about the relationship between the Mental Health Act and the European Convention on Human Rights, not least Article 5(1) which deals with the deprivation of liberty. Since the Human Rights Act was passed in 1998, there has been a succession of legal challenges to the Mental Health Act. It is argued by many people that the absence of a set of principles on the face of the Mental Health Act leaves it wide open to such challenges. I believe that that view is right and that we have a golden opportunity to remedy the lacuna now.
	So what principles should the Act enshrine? None of them is unfamiliar but all, I suggest, are crucial. If we look at healthcare more generally, the importance of involving service users as far as possible in their own care is perhaps the most obvious way in which the practice of medicine has evolved over the past10 or 20 years. It should apply in mental healthcare as it does anywhere else. Indeed it should apply with particular emphasis because when the context of care is one in which compulsory powers may at some point be used, it is all the more important that service users should be involved with their own assessment and care. It is only by doing that that users are likely to have confidence in those looking after them. The patient voice is a key plank of the Mental Capacity Act, and so it should be here. We need to promotethe idea of patient empowerment. Patients are empowered by being given information and the freedom to make choices for themselves which those around them will respect. That is so even when a patient is subject to compulsion. There is no reason why he should not retain as much autonomy as possible, consistent with his own safety and that of others. Service users should be able to express their views and say what they want and not be criticised for doing so.
	The amendment speaks of the respectful treatment of carers and of patients; it speaks of equal treatment of all groups in society. Here, not surprisingly, individuals from black and ethnic-minority communities are uppermost in my mind. I amsorry to say that respect and equal treatment arenot commodities in abundant supply in mental healthcare. Others in this debate will, I am sure, speak with particular authority on that issue, but if we allow ourselves not to address it with absolute seriousness in the context of the Bill, we shall be guilty of failing to get to grips with the stigma and discrimination which hang around mental illness like a yoke. The inclusion of principles in the legislation is a visible recognition by Parliament that stigma, discrimination and racial stereotyping need to be banished. I believe that the amendment will help promote, in their place, a culture of respect and confidence; very importantly, it will also guide the courts.
	When a patient is treated, it should be after consideration of a full range of options for that treatment, and after a conscious decision that treating him will be better than not treating him—the first "do no harm" principle. We need to make a statement about child welfare in the context of treatment for mental illness. The Minister may argue that the paramountcy principle is already enshrined in the Children Act 2004, but I firmly believe that we should be explicit about it here. The needs of children are very specific. The provisions on children are dealt with separately under the Act. When we come to debate community treatment orders, we will see that separate provisions for children are included.
	We then come to the principle of reciprocity. Where society imposes an obligation on an individual to comply with a programme of treatment and care, it should impose a parallel obligation on health and social care authorities to provide appropriate services. The mental health community feels very strongly about that principle, and I share its view.
	The final part of the amendment covers the key issue I referred to earlier: that compulsory treatment should apply only after all alternatives have been exhausted or ruled out. We must never forget what coercion feels like for the person subjected to it. It is deeply traumatic and humiliating, and frequently serves to engender terror of mental health services from that moment on. It also, almost inevitably, results in severe social disadvantages, not the least of which are employment and housing. Nobody should belittle the magnitude of what is done in the name of the state to administer compulsory detention and treatment to an individual. That is why the principle of least restriction needs to be articulated with absolute clarity.
	I like to hope that the Minister will not be unsympathetic to the amendment. If he is in any way hesitant, I put it to him that a clause of this nature, setting the scene on a Bill, is not without precedent in recent legislation. It is worth reminding ourselves of one other thing: while we all agree that our mental health services need to deal fairly and effectively with those who pose a danger to themselves or others, this Bill will affect very many thousands of people who will never harm anyone. We owe it to those people, as much as to any others, to frame the Mental Health Act within a set of clear standards and values. Only in that way will we have an Act that achieves what the Government themselves aspire to: to give all patients, whatever the nature of their illness, the treatment they need. I beg to move.

Baroness Barker: I declare an interest as an employee of Age Concern England. I also take the opportunity to welcome the noble Lord, Lord Hunt, back to his former position as Minister for Health. I can think of nobody better to be in that position, not least because we have the tantalising prospect of discussing patient involvement and patient forums in the near future. I know that those are subjects very close to the noble Lord's heart.
	Before following up on a number of the points made by the noble Earl, Lord Howe, about why we should have principles on the face of this Bill, it is important to address one other, more fundamental, question. What is the purpose of mental health legislation? I ask because just before Christmas the noble Baroness, Lady Royall of Blaisdon, kindly arranged for noble Lords who are interested in this Bill to meet some of the people responsible forits drafting. One of those people made a quite extraordinary statement. He said that the purpose of mental health legislation was to give practitioners the tools that they need to make people better. That is a partial truth and, because it is a very partial truth, quite a dangerous statement.
	As the noble Earl, Lord Howe, pointed out, this is a subject with a long-standing history of sensitivity around such matters as compulsory treatment and the detention of individuals. The purpose of mental health legislation is to set the ethical framework and agreed standards, held by society to be true, for people who are perhaps among the most vulnerable of its number. As such, it entails questions of autonomy, safety, liberty, the role of the state, science and clinical judgment. The role of mental health legislation is to provide the framework by which clinicians and their activities are judged. Given that the architects of the Bill have chosen to project it in such a limited and partial way, it is our view on these Benches thatthere is, perhaps, a greater need than ever to have on the face of the Bill a statement of principlesthat encapsulate the framework within which practitioners, patients and other individuals will seek to make what we all recognise to be extremely difficult judgments on a daily basis.
	The noble Earl, Lord Howe, has talked about the importance of Article 5 of the European Convention on Human Rights—the right to liberty and security of the person—as the key piece of European legislation into which ours must fit. Ever since 1999, the Government have received advice about the ethical nature of any future mental health Act. In 1999, the Richardson committee stated that any new Act should be based on principles of autonomy and non-discrimination. Importantly, that report was accepted by the Health Select Committee.
	As the noble Earl, Lord Howe, also said, there are immediate parallels to which the Committee may look. The Mental Health (Care and Treatment) (Scotland) Act 2003 begins with a statement of principles to which practitioners must have regard. More than that, the Government's draft Bill of 2004, which was the subject of the work of the Joint Scrutiny Committee, included at its beginning three principles—that patients should be involved in decision-making, that decisions should be made fairly and openly, and that interference to patients in providing medical treatment and restrictions imposed on them during treatment should be kept to a minimum to protect their health and safety and that of others. So the Government themselves, in 2004, could see a case for having principles included in the legislation.
	In the run-up to this Bill, there has been a fair degree of discussion about whether principles should be included in the Bill, as one would expect. The argument that has most frequently been deployed by Ministers is that principles may lose their authority or appropriateness over time, and if they are on the face of the legislation rather than in a code of practice they become more difficult to change. I do not accept that argument. Principles should be enduring. But even if they change—and sometimes they do—they are usually changes of such importance that they should be debated by Parliament.
	Over the past 30 years, the attitude of society and of the psychiatric profession to homosexuals, for example, has changed. Homosexuality is no longer defined as a mental disorder. Rightly, that change was the subject of widespread discussion in society and Parliament. I do not believe that any of the principles we put forward in this amendment would be any less durable. Nor should any change to them be of such minor importance that it should not come before Parliament.
	Why should principles be on the face of the Bill? The key issue is safety. If we have principles that set the parameters within which all clinical judgments are made, patients and practitioners will have more faith in the safety of those decisions. As a consequence, people will be more likely to avail themselves of treatment. Throughout discussion of the Bill, we will return time and again to the issue of safety and what will help or hinder practitioners as they seek to reach those who are dangerous and reluctant to come forward for what remain stigmatising services.
	We have the benefit of having been through so many drafts on this Bill that we have a lot of material with which to work. Commenting on the draft 2002 Bill, the Joint Committee on Human Rights said that the capacity of a code of practice to give sufficient protection to the human rights of patients in the decision-making process was unclear, and that it should be clarified by putting principles on the face of the legislation. As the noble Earl, Lord Howe, said, we also have other examples near to hand. We have principles in the Children Act 2004 and the Mental Capacity Act 2005—cornerstones to everybody who has to implement those pieces of legislation that specify what the legislation seeks to achieve and what considerations should be fundamental and underlie any actions. We have not yet heard why people who are subject to compulsory mental health legislation deserve less.
	Which principles should be included? The Joint Scrutiny Committee spent a great deal of time considering this issue. We decided that the principles in the Scottish Act would be consistent with good practice nationally and internationally. We thought they should serve as the basis for legislation in this country. The principles laid out in this amendment exactly reflect the legislative situation as it is being implemented in Scotland.
	There are principles in the code of practice. I do not know if noble Lords have had a chance to study them in any detail, but they should. There is similarity yet also a great difference in emphasis between the list of principles which the Government subscribe to—we assume, because of their presence in the code of practice—and those in our amendment. I draw noble Lords' attention to two in particular. First, the Government talk about a participation principle—that care and treatment should be provided in such a way as to promote a patient's participation, self-determination and personal responsibility to the greatest practicable degree. It is questionable whether giving personal responsibility to people is a principle of mental health care, as it is a principle more generally extended throughout healthcare. I am not clear why the Government should believe that this principle should have to be applied to people who are mentally ill.
	Secondly, the non-discrimination principle bears a striking resemblance to what, in the world outside, one would call the equal opportunities framework—the principle that is in the amendment. Remarkably, the code of practice does not include disability. Why do the Government not believe that disability should be included as a basis on which people should notbe treated less favourably under mental health legislation?
	There are other principles in the amendment relating to children which are not in the code of practice. It is difficult to change and to challenge principles when they are in a code of practice. There is not an easy means for us to do so. Nor is it easy to determine, from reading the code of practice—a lengthy document—exactly what weight, if any, principles have in relation to the rest of the proposals. What happens when there is a conflict? Some of the principles are indeed conflicting. Those issues were grappled with at length by noble Lords involved inthe Mental Capacity Act 2005. We had extensive discussions about principles, and about the circumstances in which principles such as best interest should be over-ridden. In this legislation, given its importance, it is necessary that we have the same framework.
	The Government have already said that it would be difficult, perhaps impossible, to include principles on the face of this Bill because it is an amendment of the Mental Health Act 1983. Which parts of the 1983 Act would be incompatible with the list of principles in the amendment? I struggle to find parts of that Bill that could be enacted in a discriminatory way and would be in conflict with these principles, which as I say reflect to a large extent international good practice.
	One of the main reasons for including principlesis to give guidance and confidence, not only to practitioners and to patients but to tribunals, to lawyers who have to implement the legislation, andto users. The noble Earl, Lord Howe, set out that case at length. The Government may believe that it would be wrong to restate principles that are set out in other legislation, but it is not an argument that I find compelling. The Children Act's paramountcy principle is repeated in various different pieces of legislation that relate to children. Therefore, I do not see why we should not have the principles included in this legislation.
	I leave it to others to go through in some detail the reasons for the different principles that are set out in the amendment. However, there is one in particular that needs to be singled out—the principle of reciprocity. If people are to be subjected to compulsory treatment under mental health legislation, it must be an absolute point of principle that there is reciprocity and that services are available to them. I do not believe that in this day and age we could condemn people to be subject to compulsory treatment and then not make services available to them.
	This is one of those pieces of legislation on major social topics that comes around once in a generation. Noble Lords have participated in many of those debates in the past; I refer to debates such as thoseon the adoption Bill. This is our opportunity, and perhaps the only one that we will get for the foreseeable future, to set out in terms what we believe is now, in this country, an acceptable way in which to treat people who have a mental illness. It is important that we do so as clearly as we can—and for the avoidance of any doubt about what we believe the purpose of this legislation to be, it is necessary that we accept an amendment of this nature.

Baroness Murphy: From these Benches, I welcome the Minister home to the health portfolio. I am sure that I speak in part for the healthcare community, which will be delighted at his appointment.
	We all want to have confidence that this Bill will protect the public in so far as legislation can; that it will be respected, if not always liked, by service users; that it feels fair and just to relatives and provides an ethical set of principles within which professionals work. In trying to provide that ethical set of principles, we should go back to the inherent principles in this Bill and all mental health legislation since the Vagrancy Act 1714. That Act specifically included the "furiously mad" among those who should be detained in bridewells but specifically excluded them from the punishment meted out to rogues and vagabonds and set some rules as to how they were to be treated.
	The primary purpose is to permit interventions to stop individuals from harming others or themselves should mental disorder impair their judgment to the extent that the usual psychological, moral and legal constraints no longer apply. Secondly, the purpose is to constrain those professionals charged with intervening. So in Committee today we are talking about the counterbalancing principles within which we take away freedom—and I remind noble Lords that this is almost the only time, outside the criminal justice system, when we do that. We must balance compulsion against what society offers to those compelled. There are other public health provisions to detain physically ill or aged people in the public interest, but they are now very rarely used, generally out of favour and many people think that they should no longer be on the statute book. At present, it happens about 46,000 times every year.
	As the noble Earl, Lord Howe, remarked, every mental health patient knows about these powers and fears their use. Even people with quite mild depressive symptoms—I would guess that there are noble Lords in the House who have experienced those—sometimes feel as if they are going mad. They might lose control and be taken away under a section. When I mentioned pink forms in the House, everybody knew what they were for.
	The Government have an extraordinary opportunity to set a new cultural context within which mental health services are delivered. They know that they have been, albeit unwittingly, the instrument that has managed at long last to unite service users, families, health and social care professionals and campaigning organisations to agree on some fundamental principles within which care should be delivered to those under compulsion. Although I know that there are healthcare professionals who support other parts of the legislation that I have my doubts about, we are all agreed—even those psychiatrists who have expressed support for some parts of the Bill—on the general principles outlined today.
	We know that the Government are not against principles, because there are some in the draft code of practice. Indeed, the National Service Framework for Mental Health has a splendid set of 10 guiding principles. Nowhere in the framework document is there any statement that it does not apply to those under compulsion. They are reflected in many of the principles tabled in this amendment.
	I understand that there has been much talk of this being an amending Act and that therefore there are clauses in the 1983 Act that might not be consistent with the new principles. My own trawl through the 1983 Act suggests that there is only one area, in Part IV, dealing with patients under criminal proceedings, which might not be entirely consistent, but it does not seem to be beyond the wit of man or the Government to introduce a small amendment to deal with them. This is such an important issue. I do not see any reason why in future principles for mental health should be abandoned because of one or two clauses that might need slight amendment. Principles should apply to those restricted as a result of criminal proceedings, if they have a mental disorder.
	If the Bill is to contain the reciprocity of principles, which principles will we adopt? We have proposed here those that the Scots have found in their recent Bill to cover the fundamentals. They are very similar, with minor differences of emphasis, to those recommended in the Richardson expert report in 1999 and were supported by the joint scrutiny committee. Summed up, they are designed: to promote patient autonomy and involvement and, when possible, to provide choice within the necessary constraints; to respect and involve carers; to promote equality, non-discrimination and respect for diversity; to provide for the least restrictive or invasive alternative; to maximise the benefit to the patient and act always in their best interest; to clarify that the welfare of any child under the Act should be consistent with the principles of the Children Act; and to recognise that the state has a reciprocal duty of care to exchange necessary compulsion with the promise of beneficial care and support.
	I first heard most of these principles outlined by the noble and learned Baroness, Lady Hale of Richmond—now our first woman Law Lord, but then plain Brenda Hoggett—at a joint meeting of psychiatrists and lawyers in 1989. I wrote them down, right then. Those who go back to see what Brenda Hoggett wrote then will see that these principles have been around, talked about and supported by those who need to use mental health legislation for along time. They are entirely consistent with the Government's wish to improve public safety. I hope that, with so much to gain and every patient, every caring family and professional urging them to accept these principles on the face of the Bill, the Government will accept the amendment.

Lord Adebowale: I support the amendment. What strikes me is that, although the current Mental Health Act was never intended to sow fear into the hearts of the black community, to which I speak daily, or into the hearts of many people who have a mental health challenge or know someone who has a mental health challenge, it does sow fear into the hearts of those communities.
	I should declare my interest as an employee ofthe organisation Turning Point, which provides significant services to people with mental health challenges. I know from our service provision and from talking to our clients how critical this amendment is to the confidence that many outside this House will have in whatever we do next with the Bill. The principles are crucial and I hope that one of the easier things that the noble Lord, Lord Hunt, will have to do in his new job is to agree with us on that. Once we have agreed the principles, the rest becomes a little easier. To be honest, I do not understand why the Government would seek to gainsay this argument. This is one of the few occasions on which the voluntary sector, the royal colleges and many other organisations have been in total agreement. They accept that this set of principles—and one could argue about principles from here to kingdom come—are crucial.
	Let me explain a little why I support the amendment. We have an opportunity to set in stone how this legislation should be applied and how it should affect the lives of hundreds of thousands of our fellow citizens. As has been stated, the legislation is likely to last for several years, so we may not get an opportunity to do this again. The principles are a vital safeguard to ensure that clinicians and others responsible for administering the legislation do not drift too far from the original intentions. It would be a crying shame if in years to come we were forced to debate mental health in a similar climate to the one in which we are currently debating it. This is a crucial opportunity to ensure that mental health legislation that allows for compulsory care is applied in the right way in the first place, before being subject to challenge. The current Mental Health Act has been subject to a number of successful challenges under the Human Rights Act 1998 precisely because of its lack of principles.
	Let me refer to some of the specific principles that are being suggested. One is to take note of,
	"the present and past wishes and feelings of the patient".
	I do not mind telling noble Lords that I have had several conversations with people using Turning Point's mental health services and in my role as co-chair of the Government's Delivering Race Equality in Mental Health Care strategy. They have a huge fear that, if or when they become subject to the Act, their ability to make decisions about any aspect of their care—even those which do not relate to compulsion—will simply not be respected. They fear not being consulted or included, and that undermines their dignity and confidence in approaching the mental health services, including voluntary services, for help. For example, this principle is relevant to concerns about levels and types of medication: it would be especially reassuring to individuals to know that their views on medication and its side-effects—a huge issue for people in the mental health system—could be taken into account.
	I am aware that my noble friend Lord Patel of Bradford will put forward amendments, which I hope to support, to strengthen the race equality and diversity issues in the Bill, but I, the Government and all noble Lords know that people from black and minority-ethnic groups are discriminated against in the mental health system. The Act affects them disproportionately. We have already said in this House that reports such as Breaking the Circles of Fear and others describe people's fear of mental health services, which, in any other situation, would be a cause for outrage and much concern. Such fears are very real. In this climate and in the light of tangible evidence of overuse of the Mental Health Act, the onus is on the Government to demonstrate in the Bill that the new mental health legislation will not discriminate against BME groups. Putting a principle in the Bill about non-discrimination and respect for diversity is essential in achieving that. Such a principle will support, rather than undermine, the fundamental aims of the delivering race equality strategy—for example, more appropriate and responsive services—and the vital progress being made outside the Act in projects such as the DRE.
	It is important to have principles in the Bill and not just in the code, as we know that that will help to ensure that legislation is used appropriately. This legislation is going to be around for a lot longer than many of us. Principles are a crucial safeguard and it is critical that they have statutory force. They will give more confidence and stronger guidance to tribunals and lawyers faced with interpreting the legislation, to practitioners concerned about how to implement it, and to people who may be subject to the Act and who are worried about how it might affect them. They would also set and help to raise ethical standards in mental health care and achieve greater transparency.
	I wish to comment further on some specific principles and turn, first, to the importance of patient participation. The value of service users' involvement and participation in their care is widely recognised in voluntary mental health provision and other areas of healthcare. When the context is one of using compulsory powers, it is all the more important that service users subject to the Act are fully involved as much as possible at all stages of their assessment and care. That is likely to enhance their engagement with practitioners and, therefore, treatment outcomes. I give as an example the case of John, who has written a crisis plan for mental health professionals to consider if he becomes unwell again in the future. It includes asking whether, if possible, when he is admitted to hospital, he may be accompanied by his father rather than a social worker and the police, and it asks that he should not be taken to the locked ward where he has had bad experiences in the past. This makes John feel that he can participate in what can be a highly traumatic sectioning process.
	My second point concerns providing the necessary information and support to enable participation. In order for their involvement to be effective and meaningful, service users should be given all the necessary information about how to lodge an appeal to mental health review tribunals. We assume that people know these things but, in fact, in many cases they are simply lost in the system and do not have the information. People should know how to contact patient advocacy services and have information about their medication. Information should also be provided in a form that they can understand, taking into account the needs of those with literacy problems or the increasing number of people whose first language is not English.
	I want to comment on the principle that the past and present wishes and feelings of patients should be taken into account. Patient autonomy is the freedom to decide for oneself and the ability to make choices which others will respect. The Department of Health's Review of the Mental Health Act 1983: Report of the Expert Committee pointed that out.
	Practitioners must recognise that many patients retain decision-making ability in relation to many decisions, despite the necessity for detention under the Act. Patients should have a right to continue to make such decisions, subject to their health and safety and the safety of others. Patient choice, which is a fundamental objective of government policy, should not be limited to those with physical health conditions alone. For example, following an assessment of Ms B, it has been decided that compulsory treatment is necessary and that that should be through a supervised community treatment order. However, Ms B does not feel safe in a community environment and would prefer to be treated in a hospital setting. Those issues need to be taken seriously and need to be set out in the Bill.
	Finally, I want to comment again on racial equality, non-discrimination and respect for diversity. There is considerable evidence that the current Act is applied more heavily among African and Caribbean people than among other groups. A statement of non-discrimination specifically in the context of the Mental Health Act would give those people a basis for confidence in the law. Importantly, this principle should go beyond non-discrimination and include respect for diversity, which indicates the need for practitioners and tribunals to take a proactive stance.
	Principles play a critical role in giving the BME community confidence in the professionals who exercise powers under the Act. The inclusion of principles in the Bill would be a visible recognition by Parliament of the need to overcome stigma and discrimination. That would assist the development of a culture of respect for the qualities, abilities and diverse backgrounds of individuals. It would also help to avoid making general assumptions on the basis of ethnic, cultural and religious stereotypes. Here I note the work of the Mental Health Act Commission in putting a spotlight on the assumptions that have led to the horrendous treatment of many people from black and minority ethnic communities in our mental health system. Crucially, it will also guide the development of future case law by establishing parameters for judicial interpretations of the Act. That will enshrine race equality in all future developments of the legislation.
	On this Bill, we stand at a pivotal point. We should take the Bill seriously. We should take seriously the idea that it will affect the freedoms and views of many thousands of people in their relationships with society through the mental health services and we should put the principles in the Bill to reassure people who, at the moment, are not using the mental health services, but who may need them in the future. I urge the Government to take the principles seriously, to accept the amendment and to work with us all to turn the Bill into something in which many people outside the House can have confidence.

Lord Bragg: I support the amendment in the context of a Government who have already done a great deal to alleviate the conditions and perceptions of disability and mental illness. I am convinced that a list of guiding principles is crucial and should be inserted into the Bill. In that, I am supported by Mind, of which I am president, and by many other expert and experienced mental health charities.
	The principles are worth restating, even in headline form. The list shows both the ambition and the centrality of the guiding principles. They concern patient participation, the right to information, autonomy, respect for carers, the availability of a full range of options, equality with people who are not patients, racial equality, non-discrimination, respect for diversity, the maximising of benefit, child welfare and reciprocity. Moreover, there should be an overall requirement in the Bill for the least restrictive alternative, including informal treatment and care.
	Why not put the principles in the Bill? Why put them in the code of practice, but not in the Bill? Why not, when these principles will serve a vital purpose for practitioners, many of whom—for example, the Royal College of Psychiatrists—support this, accede to their wisdom and put the principles in the Bill where both practitioners and patients can see them equally? Why not be guided by the democratic option? The Government's objections seem to be merely defensively technical. It would be a nailing of colours to the mast: a clear and encouraging act of faith, evidence of conviction and purpose worthy of, at its best, a fine, liberalising Government.
	Reiteration follows, but I contend that reiterationis evidence of widespread concern and strong,well informed feeling across the spectrum. The amendment is of crucial importance. Principles in the Bill should and will raise ethical standards in mental healthcare by guiding practitioners and lawyers in the implementation and interpretation of the law. That will also improve people's confidence in the legislation, particularly those who may be subject to it. We particularly need principles in a law which authorises the use of coercive powers, to guard against expedience, discrimination and abuse, and to encourage proactive efforts in favour of patients' rights and well being.
	Principles should not be left to the code of practice, where they could be changed without Parliament's agreement and would carry less weight. If the Mental Health Act becomes incompatible with any of these principles, those of its aspects should be amended. Such essential principles should be at least as enduring as the legislation. For example, principles of participation, right to information and patient autonomy would all help to counter the kind of situation where people are, or feel, coerced into agreeing to treatment, or are effectively told that there is no point in refusing. In a Mind survey of people's experiences with ECT, over half the total sample and one third of those who had had ECT most recently were not aware that they could refuse to consent to the treatment. People detained under the Act who consent to treatment do not get the second-opinion safeguard.
	The following quotations are from people who had had ECT in the previous six months not many years ago:
	"I was told that as I was on a Section 3 ... I had no rights".
	"If I had known I had the right to refuse, I would have done so. My understanding was that I had no choice in the matter and that they could do it by force".
	On racial equality, non-discrimination and respect for diversity, racial inequalities in mental health have been documented in the "Count Me In" census of 2005, particularly for African-Caribbean peoples, including higher rates of detention. That needs tackling at every level, including the guiding principles in the Mental Health Act, because of the unequal treatment that could be carried out under the Act and because it will operate in circumstances where inequalities already exist. The existence of race relations legislation does not obviate the need for inclusion in this Bill. Those rights and duties should be reinforced by the Mental Health Bill, not treated as being taken care of elsewhere.
	My final example refers to something that will come up again and again: patient autonomy. The Mental Health Act clearly restricts patient autonomy by authorising the use of compulsory detention and treatment. That makes it all the more important to include a principle that people should retain as much autonomy as possible. They may have decision-making ability in many of the areas where decisions must be made. For example, it may be necessary for someone to receive treatment under compulsory powers, but they may have views and knowledge about which treatments have previously helped or harmed them. Alternatively, there may be activities or therapies available which the patients would be willing to explore and over which they could be offered real choice, rather than either not having them or having them presented as part of a compulsory package. People should be supported to make their own decisions where possible and given the same choices as people with physical health conditions. Autonomy should be curtailed only to the extent that it is absolutely necessary, and making that a principle in the Bill makes this clear.
	I hope that my noble friend seizes the day and accepts this amendment. I urge the Government to take full note of it. Accepting this amendment would go far to help clarify and reassure those in an area which is, at last and thankfully, ceasing to be an area of darkness.

Lord Alderdice: I identify myself with the sincere and widespread welcome to the noble Lord, Lord Hunt of Kings Heath, on his return. We all know that his experience and skill will ensure that he picks up this rather heavy baton on the run and is able to continue on with us.
	I was very moved by the comments of the noble Lord, Lord Winston, who described a situation very familiar to me, as a consultant psychiatrist quite often on call in Belfast, of the difficulties that arise when one has to confront the pink forms that the noble Baroness, Lady Murphy, referred to on another occasion. What he describes are the practicalities of working out the legislation that has been properly put in place. He has not described the principle. He adverted to the principle of care and concern, and to autonomy, understanding and so on. That can be written into a piece of legislation. What could not be written in was the requirement that the noble Lord, Lord Winston, should turn up. That is not something one can put in. That was a piece of practice that was occasioned by understanding and the principled approach. That is where there seems to be some confusion.
	For me—perhaps some might think it a rather quaint notion—principles are things that you donot change very often; rather less than once in every 25 years in my view. Principles are the kinds of things that are fundamental, that you stick with, the kinds of things one is perfectly happy to put in a piece of legislation which might last for a generation. Practice is a different matter. That is the sort of thing that may have to change in various circumstances, as has been described to us in this particular anecdote. It may have to change quite regularly and frequently. The principle does not change but how one applies it has to change if the principle itself is to be sustained and maintained. The principle is something transcendent with longevity. So when I turn to the code of practice—it is not a code of principles—and the principles that are in it, I find that it states that the status of the principles is the same as the status ofthe code as a whole. The principles outlined here are not transcendent but are simply in with all the rest of the stuff in the code—a code of practice, that is, not a code of principles. The whole point of principles is that they stand over and above everything else, and one can judge what happens afterwards on the basis of the fundamental principles. As the noble Lord, Lord Rix, says, a list of principles would have a decisive influence on the way in which the Bill is used.
	It has been said by the noble Lord, Lord Warner, that staff do not read the legislation that is passed here; they read the codes of practice. I hope that I am not letting myself or my psychiatrist colleagues down when I say that my experience is that we do consult the legislation, and we consult it all the time to make sure that we are absolutely right with it. How reassuring and encouraging it would be if, right at the beginning of the legislation, was a set of principles upon which we could depend for our interpretation of all the complicated and technical details that happen thereafter. At nine or 10 o'clock on a Friday night, when a practitioner is under pressure from other healthcare practitioners, is dealing with a disturbed patient and a family in difficulties, and there are frequently very few beds available even when the decision to take the patient is made, a set of principles at the start that enables the practitioner to think in the right direction is a great protection and relief.
	The fact that those principles do not change too frequently is extremely helpful. It means that through your professional life you know where you stand, along with the patient, the carers and those who provide services over a prolonged period. They know the fundamental principles upon which they should base their professional behaviour, their caring commitment and the provision of services, as a health service should do. The idea that principles should be changed every now and again in a code of practice without parliamentary scrutiny seems to be the wrong way round. The principles should survive; they should be included right at the start and should guide Her Majesty's Government and your Lordships' House as we consider the rest of the Bill.
	It is a fundamental principle of our parliamentary process that subsequent Acts can amend previous ones, so if these principles are not in conformity with some parts of the 1983 Act we should expect that Act to be amended because we are talking about principles that go beyond what it was based on. It has been suggested that there is a real problem of compatibility. I have a problem with that, because it means that the code of practice would not be compatible with the 1983 legislation because it sets down the principles. Or does it have some kind of subsidiary statutory position which means that it does not stack up? If so, that strengthens the argument for having the principles in the Bill where nobody can be in any doubt which is primary legislation. The code of practice cannot be primary if the Government are suggesting there is a problem of compatibility.
	We have talked about guidance to those who are involved at every level from the passage of the legislation and the provision of services to the operation of the Act and the code of practice. Then there are the notions of longevity—that principles should outlast the current fashion—and of transcendence, with principles above the rest. There is a very good reason why those are important. The Bill is about the problems of disordered and deluded thinking. When I was training, my old trainer warned me against a particular form of disturbed thinking. Furor sanandi, or the madness to heal, is the belief, sometimes found in practitioners—and legislators and providers of services—that they so know the truth of what should be done that they have the right, and indeed the responsibility, to force it on people to make sure that they get better whether they like it or not. The principles will be a protection against furor sanandi.

Lord Carlile of Berriew: I apologise for my absence from the first few minutes of this debate. It may assist the Committee if, as chair of the Joint Committee that considered the previous draft Mental Health Bill, I make some comments about this amendment, which I support. However, before I start, I welcome the return of the noble Lord, Lord Hunt of Kings Heath, to the Front Bench dealing with health matters. He and I go back a long way. We were dealing with health matters together long before either of us was a Member of this House. I have great respect for his judgment and I hope that I will not be disappointed later this afternoon.
	To echo the words of the noble Lord, Lord Rix, I also mourn the passing of Lord Carter. Denis Carter made an invaluable, consistent and persuasive contribution to the Joint Committee's deliberations. He is missed by a great many of us in this House. He was a good friend to many of us.
	When he comes to respond to this debate, I invite the Minister to confirm that the inclusion of principles in this Bill, and therefore in the amended Mental Health Act 1983, is in order. I understand that it is within the Long Title of the Bill and perfectly in order. Therefore, I hope that we will not hear any more of the purported explanation that it is not possible to introduce principles in this Bill becauseit amends the Mental Health Act 1983. The constitutional position is irrefutable. It is possible to amend the 1983 Act in this way.
	We have heard the argument that it would be difficult for parliamentary draftsmen to draft anything in time to achieve the purpose of the amendment, even if the amendment is imperfect. That is palpable nonsense. I happen to deal a great deal with terrorism legislation, which is a very difficult area. However, most of it is drafted overnight by parliamentary counsel. Several noble Lords in this House are ex-Ministers who have been Cabinet Members or Ministers at a senior level. Ministers frequently instruct parliamentary counsel to draft much more complex legislation than this literally overnight for the next meeting of a Standing Committee. If the amendment is imperfect, it is not far from the mark, and I apprehend that a couple of parliamentary counsel could probably finish it "between lunch and tea", to coin a phrase.
	My next point is a general one about mental health and mental illness. No doubt others in this House have also been in the position of having to face an entry into acute mental health issues concerning those near or dear to us. In my case, it fell far short of compulsory treatment, I am happy to say. For every family and every patient who enters into these issues, it is a very frightening experience. It is like walking into a completely dark cave with, if you are lucky, the slightest suspicion of light at the other side.
	The particular problem with mental illness is that many if not most of the people who walk into that cave are highly intelligent. They are capable of understanding the principles surrounding their treatment. They do not all live in a permanent fantasy world. Most of them have long lucid periods in which they understand exactly what is going on. They are aware that they are ill but when they are sectioned they ask the clinicians—such as my noble friend Lord Alderdice, in Belfast—who go to their homes late at night, what their rights are, why they are being detained and what will happen to them. A stark illustration of that was given by the noble Lord, Lord Winston, in his very helpful speech, which put these issues into a human context.
	We are talking about intelligent people who must trust the medical services they come into contact with, particularly if those services are compulsory. The dark cave must seem an even gloomier place, if that is possible, when the treatment is compulsory in the sort of circumstances described by the noble Lord, Lord Winston.
	Principles in the statute enable the person concerned and those who have his or her best interests at heart to challenge their detention. We talk in this legislation about the liberty of the subject, and of detaining subjects who, in many cases, have committed no crime. They are simply severely ill and a threat perhaps to themselves and others.
	I recognise that the courts are of course able to take account of codes of practice. Yet the influence of a code of practice upon a court, on a take-account basis, is quite different from the influence upon a court of principles in the statute. For the service user, for professionals applying the service and for the court determining the liberty of the subject, the literal imprimatur of inclusion on the statute is most important.
	It may be said that this opens the floodgatesof judicial review. That is sometimes said by Governments when they want to avoid putting some principle or other in a Bill. Let us not forget that judicial review requires the permission of the court to proceed to a hearing. In areas such as this, the courts are extremely conscientious to ensure that leave provisions are applied fully.
	On the issue of whether practitioners pay attention to the statute and the codes of practice, I agree entirely with my noble friend Lord Alderdice. As a criminal barrister, I have a lot of experience of reading reports by and calling evidence from forensic psychiatrists who speak of the mental state of somebody who has been referred to them. I have seen Sections 37 and 41 of the Mental Health Act 1983 referred to on hundreds of occasions—and parsed in detail by the practitioners on not a few—to determine whether their patient falls within the provisions. It is rare to read in such a medical report or hear in such evidence reference to codes of practice.
	A number of considerations persuaded me and the committee that principles should be in the Bill. I want to list a few of these because they are persuasive—indeed, formidable. We were persuaded by the Richardson committee in 1999, chaired by Professor Ginevra Richardson at King's College, London, which said that principles should be contained in the Bill. We were persuaded by the Mental Health (Care and Treatment) (Scotland) Act 2003, which has already been mentioned. It has principles on its face.
	I was at a meeting earlier today—kindly and helpfully arranged by the noble Baroness, Lady Royall of Blaisdon—at which a number of psychiatrists were present. The question was asked: if Scotland can have principles, why cannot we, too? The answer frankly astonished in its risibility—if that is the noun to go with the adjective "risible". We were told that it would work in Scotland because,
	"it is a small place, a village".
	I do not know what our Scottish friends will make of that—and I can see one or two feisty ones in the Committee now. But I reject it, especially because quite a few people live in Scotland who do not come from the village—who go to Scotland and then, unfortunately, become patients. Having the principles in the Bill would provide exactly the certainty that the Scottish Parliament found when it introduced this legislation.
	We were persuaded by the Mental Health Alliance, which proposed that principles should be contained in the Bill. We were persuaded by the Minister of State, Rosie Winterton, who said in evidence to the committee that she was not opposed in principle to having principles in the Bill. As the noble Lord, Lord Rix, reminded us, in the Government's response to the committee's report, she accepted that principles should be included in the Bill. Nothing has changed in reality. I suggest that the burden is firmly on the Government to show beyond any doubt, if they can, why there is now a persuasive and convincing case for principles not to be included in the Bill.
	We were persuaded, too, by the British Psychological Society; No Force UK; the Sainsbury Centre for Mental Health, which has done an immense amount of research in this area; Depression Alliance Cymru; Mind, of which the noble Lord, Lord Bragg, is the president, as he said earlier; Mencap; the Council on Tribunals, to which I shall come in a moment; Professor Thorneycroft; and Rowena Daw from the Mental Health Alliance. They all,
	"emphasised the very powerful and important signal value of having clear and explicit guiding principles on the face of the Bill which set out the ethical standards that apply when a person is deprived of his liberty and autonomy under the Act".
	There is an absolute paramountcy in producing ethical legislation on this subject, and including principles in the Bill is a prime ethical consideration.
	We were persuaded, too, by the Joint Committee on Human Rights which, in its 25th report in November 2002, recommended that principles be clarified in the legislation.
	I referred to the Council on Tribunals, whose words are worth reflecting on. It said:
	"Since the Code of Practice will not bind the Mental Health Tribunal, it would greatly assist the Tribunal in carrying out its judicial functions under the Act if a clear statement of the guiding principles were specified in the legislation itself".
	We were persuaded by the Mental Health Act Commission, the Bar Council and, as has already been mentioned, the contents of the Children Act 1989 and the Mental Capacity Act 2005, a close cousin of that legislation, both of which have principles included.
	I must say that I am also persuaded by everything that I have heard in the Chamber this afternoon. There is a near unanimity on this issue, and I believe that it would be inexplicable to the community at large if the Minister were not to make at the very least a signal concession. With great respect to the noble Lord, Lord Warner—whom, in welcoming the noble Lord, Lord Hunt, we miss from the Front Bench on this Bill—we do not want a compromise. It is not good enough—we want principles included in the Bill. They may be slightly different from what has been proposed, but that is the commitment that we request, and I suggest that it is a perfectly reasonable request.

The Lord Bishop of Southwell and Nottingham: We on these Benches support the amendment. I do not want to repeat all the arguments in favour of the amendment, although I think I can hear the noble Lord, Lord Bragg, sitting behind me saying, "Oh, go on, repeat them all".
	In his opening remarks, the noble Earl, Lord Howe, referred to stigma and discrimination. We live with those still; they still abound around us. Certainly, I come across quite a lot of stigma surrounding mental health issues. In fact, I was coming across so much stigma last year, and it was so serious, that I arranged to have a roadshow come to my diocese, with people who could talk about mental health educatively. We had a very worthwhile session. To my great surprise, it was well received and people have asked for more. We have so much still to do on discrimination and stigma.
	The noble Baroness, Lady Barker, referred to the fact that we have a great opportunity now to make this Bill even better than it is. Amendment No. 1 isthe way in to doing just that. We need to seize the opportunity. The principles are: maximising the participation of the patient, taking proper account of the views of patients and carers, non-discriminatory treatment, reciprocity and having the least restrictive treatment. We believe that those principles should be in the Bill, and it is difficult to see any of them being nullified or superseded. I hope to hear the newly returned Minister, the noble Lord, Lord Hunt, give us all some encouragement. Allowing for the cautions of the noble Lord, Lord Warner, I say let us give the parliamentary draftsmen even more work to do on wet winter afternoons. Others on the Benches opposite have made similar comments. As the noble Lord, Lord Alderdice, pointed out, guiding principles also have a significant professional and public educative role. We support the amendment wholeheartedly.

Baroness Neuberger: I, too, welcome back the noble Lord, Lord Hunt of Kings Heath. He and I, like several others in this House, go back a long way. Like my noble friend Lord Carlile, I very much hope that he will not disappoint on this occasion. He does not usually.
	I should declare some interests. I am an honorary fellow of the Royal College of Psychiatrists, which has been much quoted this afternoon. I was chief executive of the King's Fund, a member of the Mental Health Alliance, which has been writing to members of your Lordships' House regularly over the past few months and, indeed, years. I am also an adviser to the trustees of the Sainsbury Centre for Mental Health, which, too, has been much quoted this afternoon. Like the noble Baroness, Lady Murphy, I believe that the Mental Health Alliance is one of the great things to have happened in this third time round with the mental health legislation. The Mental Health Alliance—an alliance of some rather unlikely bedfellows—got together seven years ago and has become truly a force for good; it is a good forum in which strong, powerful and intelligent thought is given to these issues and great debates are held.
	Like the noble Lord, Lord Bragg, I think that the question to the Minister is: "Why not put this on the face of the Bill?". Part of the mental health legislation is so compulsorily restrictive that the principles by which the state, if you like, takes unto itself the ability to restrict the freedoms of various often very vulnerable members of society should be clearly stated where everyone can see them and is likely to see them.
	Like the noble Lord, Lord Walton, I have received an enormous number of letters, as I am sure we all have, from a whole variety of organisations. But perhaps the most extraordinary thing has been not the enormous number of those letters, which I think we might have expected, but the number of letters that many of us have had from complete strangers—not people whom we already know—asking us to take this aspect very seriously. They want principles that service users or patients can see and understand to be put on the face of the Bill. They are saying that not because they are theoretically interested, but because they are the parents, siblings or children of people who have severe mental illness episodically; they know that it is important for those people to see what the principles are and to test the way in which they are treated against those principles. Like the noble Lord, Lord Adebowale, I think that we should take this matter extremely seriously. I very much hope that the noble Lord, Lord Hunt, will accept the amendment, even if he takes it away to have a think about it and comes back with a marginally different version.
	Let me deal with the doubt about whether principles should be included on the face of a Bill because they change. Yes, we change. Human beings view things in different ways over a quarter of a century—and it is roughly every quarter of a century that we have a look at mental health legislation. Our perceptions change. However, as my noble friend Lady Barker said, if they change, we have a chance to debate the issues in this House. Homosexuality is a good example. I suspect that in the next few years we will change our perceptions—to the good, I hope—on the issues that are being raised now about the treatment of black and minority ethnic communities in our mental health services. And, yes, we will use this principle to drive our perceptions further. You can say that perceptions may change and that we may have to debate things again, but that does not invalidate putting principles on the face of a Bill. You derive everything else from those principles. As we examine the rest of this legislation closely over the next few weeks and months, we need to do so through the net of the principles that I hope will be established.
	The issues raised in the principles in the amendment are important. For example, the welfare of the child is paramount in them. That is key, but it is not to be found in the principles in the code of practice that the Government have provided, on the basis, I think, that the treatment of children and young people is separate from the treatment of adults under this legislation. Any of us who have had any experience of mental health services—I once chaired a mental health trust—know that there are borderlines here. Young people of 16 and 17 years of age often find themselves in adult wards being treated by people who are not expert child and adolescent mental health service professionals but normally work with adults. If we do not have a principle in the Bill about the treatment of children, I believe that people will not take the welfare of children seriously. I consider that to be a key issue in our present mental health services, where many young people between the ages of 16 and 18 are still to be found in our adult wards using adult services.
	Secondly, there is the question of reciprocity, which also is not mentioned in the code of practice. When the state deprives people of their freedom, it must do something in return. One would expect high-quality treatment, care and protection, and the idea of reciprocity not appearing in the Bill worries me.
	I also want to talk about Scotland. Those whom I have talked to working in the mental health services in Scotland say that thus far the Scottish legislation seems to be working quite well. It seems extraordinary that we do not learn from that and say that, if that is the case and if principles appear in the Scottish legislation, perhaps we should also have principles in our legislation. I want to quote a Scottish service user:
	"The principles ... make crystal clear the need to respect us and treat us as fellow humans deserving of dignity and respect, entitled to participate and have a say in what happens to us at all points in our treatment ... Nowadays, I see my psychiatrist as someone I trust rather than fear or feel suspicious of; in the past, I felt the opposite".
	However, the key reason that it is important that the Minister accepts the amendment is that, as the noble Lord, Lord Rix, pointed out, the Government accepted that principles should be in the 2004 draft Bill. Therefore, having accepted that in principle, it should be possible to deal with the practical objections raised by the noble Lord, Lord Warner, and others. If we cannot deal with practical difficulties, I do not think much of us as legislators.
	The Government claim that it would be difficult to graft principles on to the existing Act but, despite everything that we have heard this afternoon, I cannot see why that should be so. The noble Lord, Lord Warner, said that it would be difficult for the parliamentary draftsmen, but—dare I say it as someone who is related to an odd lawyer or two?—they are lawyers and they should be able to deal with it. Not only that but, if they cannot do it in a single wet afternoon—although my noble friend Lord Carlile thinks that they could do it between lunch and tea—perhaps there should be several wet afternoons, or weeks or months of wet afternoons, until they can do it. It seems to me that that objection simply does not stand. We have to carry on looking at the issue until we can get it right.
	People from all round the Chamber have said that they want to see principles in the Bill. They have been saying that for a variety of reasons, heartfelt and passionately. They want to see them because they would set some ethical standards, and arguably raise ethical standards, in our treatment of vulnerable people with mental illness. They would give guidance and confidence to tribunals and lawyers and would guide practitioners. As someone who used to chair a mental health trust, I know that psychiatrists and psychiatric nurses look at the legislation and not only at the code of practice. I have frequently seen them do it: they do it when they are in doubt or when they think that the code of practice might be going out of date or might not be entirely adequate.
	The principles would also give enormous confidence to people who think that they might be subject to the Bill and who are worried that it might in some way be used against them. It would generally give confidence to service users, as one service user has said of the Scottish Act. The Royal College of Psychiatrists is right to say that the principles would provide clarity and transparency of mental health services for all concerned about when and for whom compulsion is required and when it is not appropriate.
	As my noble friend Lord Carlile has said, the expert committee, chaired by Genevra Richardson wanted it. It said that,
	"legislation is most effective when it reflects the values and ethics of those concerned with its implementation and thereby attracts their agreement and co-operation".
	The noble Earl, Lord Howe, has argued that the European Convention on Human Rights is called into play here and that the absence of principles in the Bill would leave the legislation open to legal challenges. The Joint Committee on the Bill said that placing them in a code of practice that can be overridden in emergencies is not sufficient. The Mental Health Act commissioner, Chinyere Inyama, has argued that the absence of the principles in the current Act led to drift. Perhaps that is why there have been so many challenges under the Human Rights Act 1998. As many others around the Committee have said, principles are included in the Children Act, the Adoption Act, the Mental Capacity Act and, of course, the Scottish mental health Act, so why not here?
	The Government have said that principles restating rights and duties in other legislation should not necessarily appear on the face of the Bill. That must be wrong, because how can it be right for the Adoption (Scotland) Act but not right here? The principles should be stated and cross-referenced. Given the nature of the legislation, they need to be seen.
	First and foremost, I am a rabbi so I shall make a rabbinic point. The principles are a little like the 10 Commandments: one does not need to keep repeating them. It is not that people do not know them—they do—but they are principles and the rest can be derived from them, so one puts them in to remind people. The principles need to be right at the beginning of the Bill as an aide memoire, to give moral authority, which I believe that people need in this kind of legislation.
	I have a couple of points to make on individual principles. Clearly, the issue of participation is obvious. From all around the Committee, we have heard that people want greater participation by people who have mental illnesses and who often have them episodically. That needs to be strengthened in the code of practice. The issue of carers is relatively new as regards quarter-century reviews of mental health legislation. In the evidence submitted to us before today's debate, it was very clear that the views of carers need to be taken into consideration much more. The national confidential inquiry into suicides and homicides emphasised that the consultation on working with carers was a key part of working differently with people who have mental illness. The expert committee said the same.
	On patients' wishes, the principles in the code of practice simply do not go far enough. They do not encapsulate paragraph (c) of the amendment, the paragraph for which the noble Lord, Lord Warner, did not care:
	"the present and past wishes and feelings of the patient which are relevant to the discharge of the function".
	He argues that that principle is not one that is easy to translate into a set of principles in the Bill. I beg to disagree with him. Of course, it is a principle in the Mental Capacity Act and, therefore, translates very neatly into this Bill. I argue that it is very important to take patients' wishes into account.
	On race, equality and diversity, the noble Lord, Lord Adebowale, made a strong case. Breaking the Circles of Fear, published by the Sainsbury Centre for Mental Health, made absolutely clear how terrified of the services many black patients are. That is exacerbated by the fact that, increasingly, some of the mental health professionals become frightened of patients from the black and minority ethnic communities. That exacerbates the fear, and the process goes round in circles. The evidence is clear that the incidence of black patients—particularly men—being detained under the Mental Health Act is between 25 and 38 per cent greater than among other groups. Non-discrimination must therefore be in the Bill to give those communities confidence. Assuming that practitioners will remember non-discrimination and take it into account, day after day in a busy practice, without it being in the Bill is at least unwise and arguably unsafe.
	The noble Lord, Lord Ramsbotham, is of course right to say that prisoners are the third special category, along with children and people from minority ethnic communities. He is right because such an enormous proportion of the prison population has either a mental illness or personality disorder or both. Again, principle (f), which makes it clear that they can have treatment no less favourable than any other patient, is absolutely vital.
	I hope that the Government will listen to everything said around the Committee. One thing that has worried me particularly, however, is the omission of the disability framework from the principles. The Disability Rights Commission has said:
	"In relation to non-discrimination principles, we believe it is not merely desirable but necessary to restate and reinforce key principles which feature in other legislation. The existing public sector duties to promote disability and race equality, for example, need practical reinforcement in a legislative framework in which people may be deprived of their liberty and where prejudicial and discriminatory judgments can so easily come into play. Including principles which support the autonomy and human rights of mental health patients, we believe, would be an effective way of the Department of Health being able to demonstrate that it is meeting its duty to promote disability equality under Section 49 of the Disability Discrimination Act".
	That case is made. There must be a statement of principles including disability.
	I remind the Minister of the NHS Plan which came into force about five and a half years ago. There was a statement of principles right at the beginning of NHS Plan: a Plan for Investment, a Plan for Reform—a sort of Ten Commandments, dare I say it, for the NHS—which had massive sign-up from all around the NHS: patient groups, royal colleges and all sorts of advisory groups. It gave the NHS Plan the feeling that people really wanted to make it work. The same must be true here. If we can get the sign-up, with principles that everybody has agreed are the right way forward, it will be much easier to make the legislation work.
	The final argument was made by my noble friend Lady Barker. It is about making patients feel safer. Possible service users and present patients would feel safer if principles enshrining their protection were actually in the Bill. That is important for them, but it is just as important for public safety. They are much more likely to then seek help than if they feel that the principles are in a code of practice that could be overridden. If they do not feel safe, and that they might be subject to compulsion when they do not feel it is right, they will not seek help. If people who need help do not seek it, we are in trouble.

Lord Hunt of Kings Heath: I thank noble Lords for their warm welcome, which is much appreciated. I pay tribute to my noble friend Lord Warner for his absolutely magnificent work as a health Minister over, I think, three-and-a-half years.
	I have a certain amount of form in this area as on 20 December 2000 I made a statement on behalf of the Government about our plans for this legislation. Since then, there have been two draft Bills and much discussion and development of ideas. I am glad that we are now in a position to move forward. At the time of that statement in 2000, I said that good quality care and treatment is the key to making sure that most people with mental health problems never need fall within the scope of mental health legislation and I talked about the Government's plans for improving services. One can never be complacent, but I am glad to say that since then there has been improved access to effective treatment and care, standards have been raised, and services are quicker and more convenient. Of course, there is still much more to be done.
	It also has to be recognised that however much we do to improve services, there will always be a need for mental health legislation to protect a person with serious mental health problems from harming themselves or others. We are seeking to update that legislation, not only to ensure it meets the objective of protection, but to make sure that the legislation is in line with modern service provision and promotes patient safeguards.
	I will respond to the telling comments made about ethical standards. Of course detention in hospital and compulsory treatment raises difficult ethical issues; it is right that we debate those fully. We must make sure that we get this legislation right. We should also accept that patients will rarely be happy about being brought under compulsion, and we have an opportunity here to ensure that when compulsion is used it is done in ways that best serve the needs of patients and provide for the proper safeguarding of their rights. We are committed to providing good quality and accessible services and we will continue to encourage patients to seek help where they believe they need it. Despite this, there will always be occasions when compulsion will be needed—a fact we believe our community, including the users of mental health services, acknowledges.
	Clearly, I am new to this debate and noble Lords who have spoken are very experienced and expert in this field. I just want to assure them that I see my role as listening to the debates in Committee. I want to find as constructive a way forward as possible and will do everything that I can to make sure that that happens.
	Noble Lords were very kind to me and then suggested that I could confirm the view they have of me by accepting Amendment No. 1. Alas, not for the first time, I shall disappoint. However, I have listened carefully to the debate and have a sense of where noble Lords are coming from. I also understand full well the importance of ethical standards and fully understand that a principled approach to the implementation of mental health legislation is vital. However, the Government see some practical difficulties in accepting the amendment as it stands or accepting it with minor modifications. I say to the noble Lord, Lord Carlile, that putting the principles in the Bill is not a constitutional problem, rather we are concerned about the practical impact of those principles. We consider that the right and best way to approach the principles is to apply them in the codes of practice. I say to my noble friend Lord Bragg that this approach is not defensive and technical, but is concerned to make the legislation as clear as possible. Putting the principles in the Bill might well lead to a lack of clarity and a lack of understanding by practitioners who have to operate day in and day out.
	Noble Lords, and many people outside this House, have referred to the Mental Health (Care and Treatment) (Scotland) Act 2003 as a good example of principles in an Act. The noble Lord, Lord Carlile, reminded us about the recommendations of his committee and I pay tribute to the work that he and other members of that committee undertook. It is certainly the case that in the Government's response to the committee's report we agreed that principles should be in the Bill as long as they could be drafted in a way that allowed for due protection of an individual's rights and autonomy while also facilitating practitioners and others to take decisions to minimise harm. But there is a difference between then and now: the Scottish Act and the draft 2004 Bill were replacement legislation, but the Bill before us is not. It is an amending Bill in response to many comments received from stakeholders. It amends a well established and legally tested Act of Parliament—the 1983 Act—which embodies a finely balanced system matching individual rights against the need to take action to prevent harm.
	The 1983 Act already contains overriding principles, albeit that they are inherent in its provisions and not separately spelled out. None the less, they are there, and I shall attempt to summarise them. First, the common law protects the personal freedom of the individual, which may not be curtailed except in circumstances sanctioned by law. Secondly, the law may provide for the compulsory detention in hospital of those who suffer from mental disorder when it is necessary for their protection or that of others—which is what the Mental Health Act primarily does. Thirdly, compulsory interventions must be for clinical reasons. Fourthly, compulsory interventions must be justified in all the circumstances—to give the most obvious example, detention for treatment under Section 3 is permissible only when other ways ensuring patients get the treatment they need would not suffice. Fifthly, in order to determine that compulsory interventions are justified in the terms of the Act, other options have to be considered. Sixthly, the detained person has the right to have the lawfulness of his detention reviewed by an independent judicial body that has the power to discharge him if it finds his detention is unlawful. I say to the noble Lord, Lord Rix, and to other noble Lords that our concern is not so much about a conflict between those principles and those in the amendment, or about the time of parliamentary counsel; our concern is that grafting new principles on to such an established and tested piece of legislation does not offer the clarity that proponents of this amendment are seeking.
	Of course, practitioners need guidance on how to operate the Act, and we agree that guidance should include explicit principles to which they should have regard. That is why principles are contained in the current code of practice for England and Wales and why we propose to revise and extend them in the illustrative revised code that we have issued alongside the Bill. Like the 10 principles proposed in this amendment, people are required to have regard to the code, including its principles, which means that, as the courts have stated, they can depart from them only if they have cogent reasons, and they may be called on to justify their reasons if they do so.
	The difference between having the principles in the code and having them in the Act is the clarity of their relationship with the detailed provisions of the Act. If the principles are in the code, it is clear that the statute comes first. The principles do not change the statute, but guide people on how to approach its implementation. If the principles are in the Act, they must be assumed to have an effect equal in status and therefore somehow add to the existing detailed provisions, which would, I suggest, make interpretation much more complex.
	Let me give examples of some of the issues that would be problematic. My noble friends Lord Warner and Lord Soley referred to some of them. If wetake the amendment introducing a principle of maximising the benefit to the patient from the discharge of the functions, at the level of generality, no one would disagree. However, its very purpose means that the Act needs to strike a balance between the needs of individuals and the rights of others to be protected from the risks posed by their mental disorders. That balance is inherent in the legislation as it stands, and putting this principle in the Act, especially with no counter-balancing provision about assessment of risk or harm to others, might have to be presumed to change that balance somehow.
	The noble Baronesses, Lady Barker and Lady Neuberger, raised the issue of the reciprocal right. The reciprocal right to treatment and support principle introduces a further obligation to anticipate health outcomes. It seems to us that the effect would be to restore many of the disadvantages of the so-called treatability test, to which we will be coming in due course. There are many cases in which it is entirely right that a detained patient should be treated in a comparable way to a non-detained patient. The fact of detention should not, for example, make any difference to the quality of healthcare received, nor should the patient be treated with any less consideration or respect. But we must think about what the principle would mean when applied to, for example, the criteria for detention. The criteria are in the Act and are the justification for treating the patient differently. We could debate whether that is less favourable treatment, and I can imagine that many people might think that it is. It is certainly true that it inevitably prevents patients doing certain things and making certain choices that other people would be able to make if they were admitted to hospital voluntarily. Yet this principle, which noble Lords would have as part of the Act itself, relates to treatment that can be justified in the circumstances, so it appears to call for justification over and above the criteria that already determine when an application for detention can be made. Yet it is not clear what the justification would be or why there should need to be any further justification. If noble Lords feel that the criteria should be changed, the way to do it is to propose amendments to the criteria and not to create uncertainty by putting principles in the Act whose relationship to the criteria is unclear.
	The very purpose of the Act is to provide a lawful framework for the application of compulsion where it is necessary for the prevention of harm. It is to enable patients to be treated under constraints which would be unnecessary were it not for the risks of harm posed by their disorder. To put this principle in the Act risks frustrating that purpose.
	Likewise, while consulting carers is a good thing—subject to the specific circumstances of the case—the effect of making it a principle in the Act would not merely be to make it explicit. Decisions often have to be taken in circumstances where consultation with carers may not be practical; for example, where emergency treatment is required. Does making it a principle in the Bill mean, for example, that taking account of carers' views would become, in effect, an additional criterion for such treatment, beyond the fact that treatment is immediately necessary to save the patient's life or one of the other purposes set out in Section 62? If so,it is hard to see how that would be desirable. Overall, this principle would seem to risk placing a disproportionate burden on practitioners that could even be to a patient's detriment.
	As noble friends have said, the proposed principles also have the potential to conflict with each other. There are circumstances where it may be inappropriate for some reason to consult carers, perhaps because of the views of patients, which would have to be taken into account under the previous proposed principle in the amendment.
	Similarly, the maximum benefit principle and the least restriction duty may conflict. Compulsory treatment may speed up a patient's recovery but involve more restriction than could perhaps be said to be necessary if the risk posed by the patient's disorder could, in theory, be managed equally well by detaining the patient for a long time with only the minimum care and treatment. Yet, in that case, the amendment would seem to suggest that least restriction must be preferred, because unless the action needed to provide maximum benefit were "necessary" rather than, let us say, highly desirable, the least restriction duty would trump the maximum benefit principle.
	The Act is, in large part, about clinical and professional judgments. By its very nature, it has to be so. The presumptions of circumstances for which this legislation must cater are surely too varied to be amenable to primary legislation. There is surely an argument for leaving practitioners with sufficient discretion to deploy their professional judgment proportionately with the patient's needs and the assessed risk in every case, not tie them down with over-prescriptive legislative requirements.
	I have listened carefully to noble Lords' passionate speeches. Their intention seems clearly to be to ensure that practitioners, as well as patients and the public, understand and have access to a clearly defined set of principles to promote best practice, and no one could argue against it. However, that is the beauty of the code of practice. Noble Lords have rather dismissed the benefit of flexibility. Twenty five years has been quoted as the average amount of time between different mental health Bills. Circumstances change. Even if we were to adopt principles which, it seemed to us, as the noble Lord, Lord Alderdice, suggested, would last many lifetimes, none of us could say with confidence that we could establish all those principles today. Life and society move on. That is the beauty of the code of practice. My understanding is that it has been changed from time to time. There is ample opportunity for scrutiny by Parliament of the code of practice.
	Various comments were made about various aspects of the code of practice. I very much accept the point about disability rights. We have produced an illustrative code of practice. The very point of producing this code of practice for discussion and consultation is to be informed by what is in it. If, in the course of time, the code of practice proves to be missing something, and if, as the Act is implemented, it becomes clear that something needs to be added, one can make changes as quickly as possible. However, who of us who have listened to the endless debates on mental health legislation would have confidence that we could simply and quickly change the primary legislation? I urge noble Lords to consider strongly the benefits of an approach through the code of practice, subject to what will be extensive consultation and informed by the debates in your Lordships' House on this Bill.
	Few noble Lords mentioned Amendment No. 59, but I ought perhaps to say a few words on it before summing up. It would apply principles proposed for the Mental Health Act 1983 by Amendment No. 1 to all decisions and actions taken under the Mental Capacity Act 2005. The amendment was proposed to illustrate that principles were contained in the Mental Capacity Act. I understand that, but I hope that I have explained that we see a difference between a Bill which seeks to amend an existing Act and the circumstances of the Mental Capacity Act.
	If Amendment No. 59 were agreed to, there would be a great problem in dealing with the two sets of principles as set out in the amendments. People who lack capacity to make their own decisions, whether it be in the context of their personal welfare, property or affairs, or of the new Bournewood safeguards to be established by this Bill, should be fully supported to participate in decision-making about their care. Similarly, no one would argue against the fact that a person's present and past wishes and feelings should be considered if decisions must be made on their behalf; that the views of those, such as carers, with an interest in the person's welfare should be taken into account; or that there should be no discrimination. However, Sections 1 to 4 of the Mental Capacity Act already establish these principles. I am not sure how it helps to add the further 10 principles, designed for a different purpose; it would simply confuse.

Earl Howe: This has been a debate of very high quality, one of the best that I have had the privilege of taking part in. I thank all noble Lords who have participated in it and thank the Minister for his very full and thoughtful reply. We start from a point that is quite unusual when we debate legislation. There is near universal agreement outside this House, as evidenced by the list read out by the noble Lord, Lord Carlile, that there should be a set of principles on the face of the Bill. We have heard this afternoon that there is very wide agreement within this Housethat that should happen. The noble Baroness, Lady Neuberger, is right to have posed the essential question: why not place principles on the face of the Bill? Are the arguments advanced by the Minister strong enough to cause us to think again?
	We have heard from many noble Lords that principles have real practical value. We can see that already in Scotland. I was interested that the Highland Users Group in Scotland has said in a recent broadcast how useful it is to have principles in the Act in giving them confidence in how the legislation will be implemented. That is particularly important because psychiatry is the only branch of medicine feared by its patients and the noble Lord, Lord Adebowale, got that point absolutely right. He and the noble Lord, Lord Bragg, were right to say that part of the point of a set of principles is to raise ethical standards of practice. Because they are in the statute, a sound set of principles should have a lasting value over the long term. I took note particularly of what the noble Baroness, Lady Barker, said; namely, that the justification for principles is that people will have confidence in the safety of the decisions made.
	There seems one particular weakness in a code of practice. A code can be departed from as a result of a House of Lords judgment or case law. That can occur in a whole class of cases so long as there is a cogent set of reasons for doing so, and I have an example in my file. By contrast, guiding principles are of such general applicability that it is hard to see which of them could possibly be incompatible with the detail of the law. Sadly we have to remember that there is a long and ignoble international history of abusing detention in mental hospitals.
	The noble Lord, Lord Hunt, was right that circumstances change, but if principles are to be changed in response to those circumstances, as we might envisage, it is essential that this only follow parliamentary debate and decision. The fact is that practitioners pay more attention to the Act than the code; that is also true of the Mental Health Review Tribunal and the courts. Over 25 years the Bill will lead to the detention and forced treatment of at least 1 million people, and ensuring that the provisions of the Act are in line with the principles would be time very well spent.
	The noble Lord, Lord Hunt, pointed to a possible conflict between some provisions in the amendment. I think that the principles, by their nature, involve a balance between them at different times and in different circumstances. That is exactly what occurs in the implementation of all human rights law, when we think about it. The human right to life, for instance, and the right to liberty. There are circumstances when those two are in conflict. That is the nature of the implementation of this kind of law.
	The noble Lord, Lord Warner, was critical of the amendment and commended to our attention the principles set out in the code of practice as an alternative. I would just say to him that the amendment is actually modelled very closely on the wording of the Scottish Act of 2003. It was because I did not want to fall into the trap of importing practical detail on to the face of the Bill that I did not do a straight crib of the code of practice. The noble Lord, Lord Alderdice, was absolutely right about that. The code of practice is primarily that, rather than a set of guiding principles.
	The noble Baroness, Lady Murphy, made the excellent point that the principles in the amendment have been around for a very long time and have gained wide acceptance; however, I am more than happy to concede that the amendment may not be perfect. I should just say that there is a misprint in the last line of the amendment. It should say "informal" care and treatment.
	If the principles are not compatible with anything in the Act, surely we ought to try to identify what those issues are. I think we will come to a number of them later in our Committee proceedings, but I say to the noble Lord, Lord Warner, that it should not be beyond the wit of parliamentary counsel to propose a set of principles along the lines of those set out in the amendment.
	There is, of course, a larger point. If it is the united will of this House, supported, we may be entitled to hope, by the Minister—at least in principle—that such a clause be drafted, then a way should be found for that to happen. The noble Lord, Lord Williamson, said that we must be bold, and I fully agree with him. He is absolutely right. I urge the Government to be bold, to use this opportunity to put the legislation into a context of values and, in so doing, make a real difference to mental health patients. If the Minister commits himself to that, he can count on the support of noble Lords on all sides of the House as he sets about the task.
	This is clearly not the occasion to test the opinion of the House. There will be a great deal more discussion and debate before we settle this issue. I beg leave to withdraw the amendment.

Lord Carlile of Berriew: The noble Baroness,in moving this amendment, has done so comprehensively, and has given the views of the Joint Committee. I would not resile from those views for one moment. I agree entirely with what she said, although I would put it in a slightly different way, to add something—I hope—to the way she expressed herself. The committee was of the view that this was, in many senses, an issue of discrimination. People suffering from autistic spectrum disorders carry out valuable roles in society. I suspect that there are not a few people suffering from autistic spectrum disorders not a million miles from where we sit now and the other place.
	If I may be anecdotal for moment, I recall that last year someone came to install some case analysis software on my laptop in my barristers' chambers. He explained to me that in his business he employs four people who suffer from autistic spectrum disorders to prepare and analyse the vast quantities of case material—and we were talking about a huge fraud case—which were to be reduced into a particular CD-ROM format. To his great credit, he told me that not only are they among his most valued employees, but that everyone in his firm earns the same wage, so that they earn exactly as much as he does. He was amazed that more companies were not using people suffering from autistic spectrum disorders to deal with very complex issues of that kind, which maximise the particular abilities that some people suffering from autistic spectrum disorders, including Asperger's syndrome, experience.
	To say that people suffering from autistic spectrum disorders are not "normal members of society" is, in my view, discriminatory and insulting to those people. Returning to where I started, I should say that it seemed to the committee that, although people with autistic spectrum disorders had a greater incidence of mental disorders in their lives, there was no evidence before us to support the view that one could assume that they suffered from mental disorder. The provisions as they stand imply that assumption. If the amendment is accepted by the Government there would be no deficit in the effectiveness of this legislation in relation to people suffering from autistic spectrum disorders.

Lord Rix: I must first declare an interest as president of the Royal Mencap Society. I mentioned earlier this afternoon that today happens to be the 30th anniversary of my last appearance at the Whitehall Theatre. It is also, almost to the day, the 24th anniversary of the first time I had the argument which is encapsulated in Amendment No. 3, which stands in my name. On that occasion the argument—and I admit eventual agreement—was with the noble Lord, Lord Elton, who is not in his place this evening. I do not know how many health Ministers there have been since 1983, but I am delighted that the noble Lord, Lord Hunt, on almost his first day in his new job, will be continuing the discussion.
	I hope he will have read my Second Reading speech, and at the same time may have seen the letters which I have received from, according to the Department of Health heading here, not the "Right Hon" but the "Right" Rosie Winterton MP, Minister of State for Health Services—she is a right one—and from the noble Lord, Lord Warner, Minister of State for NHS Reform as was. With the Second Reading speech and those two letters, I am sure he is well aware of the situation.
	Clause 2 as currently drafted says that people with a learning disability are not normally by virtue of their disability to be considered to have a mental disorder for the purposes of the Mental Health Act,
	"unless that disability is associated with abnormally aggressive or seriously irresponsible conduct".
	Amendment No. 3 would remove the aggressive or irresponsible caveat, which would mean that people who have a learning disability but no other mental disorder would not be subject to compulsion.
	I asked for this amendment to be grouped separately from that on autism from the noble Baroness, Lady Morgan, because although the two cover the same clause, they raise different issues. Amendment No. 2 relied on Clause 2 retaining its existing structure and sought to include autistic spectrum disorders on the same footing as learning disability. Amendment No. 3 seeks to change the structure of Clause 2, placing learning disability on a different footing. I hope the noble Baroness will accept my explanation as to why I did not intervene.
	In explaining what this amendment means, I must first make it clear that it does not mean that people with a learning disability would be excluded from the scope of the Bill altogether. People with a learning disability may well have a mental health problem or a mental disorder which needs to be treated under compulsion. Everyone who has a mental health problem comes within the scope of the Bill, including people who also have a learning disability. Indeed, there is evidence that the prevalence of mental ill-health among adults with a learning disability is higher than the prevalence of mental ill-health among the general population. Only last week, I read an article in the latest edition of the British Journal of Psychiatry reporting on a cohort study in Scotland—even though it is a small nation—which found that more than 40 per cent of adults with a learning disability also experienced mental ill-health. Other research has suggested that the prevalence of depression among people with a learning disability is four times greater than that among people without a learning disability, and that the prevalence of schizophrenia among people with a learning disability is three times greater than that among the general population.
	Just as my noble friend Lord Adebowale, in moving Amendment No. 5, rightly seeks to make it clear that dependence on alcohol or drugs does not preclude the existence of a mental disorder, so I want to emphasise that having a learning disability does not preclude the existence of a mental disorder either.
	I labour this point for two reasons. First, it demonstrates that my amendment would not prevent people with a learning disability being made subject to compulsory powers. They would still be more likely to come under the scope of the Bill than the general population. Secondly, and more importantly, abnormal aggression or serious irresponsibility—the characteristics for which people with a learning disability could be sectioned under the Bill as it stands—may in many cases be caused not by a person's learning disability but by an underlying health condition which ought to be treated. I am concerned that the Bill as it stands would allow people with a learning disability who also have a mental health problem to be sectioned on the basis of learning disability plus aggression, leaving their mental health problems undiagnosed and unaddressed. Framing a law in a way which may incentivise misdiagnosis, or lazy or convenient diagnosis, is not helpful.
	We already know about serious inequalities in the standard of healthcare experienced by people with a learning disability. Mencap's 2004 report, Treat Me Right!, and the Disability Rights Commission's 2006 formal investigation, Equal Treatment: Closing the Gap, both found evidence of diagnostic overshadowing, in which symptoms of health problems displayed by people with a learning disability were treated as being part of the learning disability, rather than as evidence of a coexisting condition. This could mean a person with a learning disability who is behaving in an aggressive or irresponsible way has their mental health problems completely overlooked.
	Aggression and irresponsibility may be symptomatic of physical health problems, or stress. Allowing people with a learning disability who are aggressive or irresponsible to be sectioned on that basis may lead to physical health problems being missed. Mencap's Treat Me Right! report contains an account by the mother of Simon, who has a learning disability:
	"We knew there was something wrong with Simon. He was scratching his face and screaming and seemed extremely distressed. So we took him to see his GP, who couldn't find anything the matter. We kept saying that we thought he must be in pain. But he just wouldn't listen. He told us: 'That's just the way they are sometimes. Just take him home.' Luckily, the dentist took more time to examine Simon and found that he had an abscess. I hate to think how much pain he must have been in".
	Fortunately, this case had a happy ending and did not involve the use of mental health law. Yet it is not difficult to see how things could have been different, here and in many other cases. My concern is for people like Simon who, being unable to communicate, may respond to pain by lashing out and being violent. It is also for people like Simon's GP, who may simply write this behaviour off as being part of the learning disability and who, in order to protect the patient or those around him, use the Mental Health Act to provide the wrong kind of treatment under compulsion.
	I am concerned that Clause 2 may make it less likely that people with a learning disability who behave in an aggressive or irresponsible way will have other underlying mental and physical health problems identified and treated, so the Bill as drafted couldlead to people with a learning disability being misdiagnosed and not getting the treatment that they need. It is not the purpose of the Bill to provide people with worse health conditions, but I am worried that it may be the effect. Perhaps the code of practice could be used to make this clearer. AmendmentNo. 72, which we shall debate in due course, would give the code statutory force, which might help to eliminate some of the poor practice which I am worried about.
	It is also worth pointing out that when a person lacks capacity in relation to the question of whether he should be given medical treatment, he can be treated in his best interests under the Mental Capacity Act. When people with a learning disability behave in an aggressive and irresponsible way, they will in most cases lack capacity.
	I should say a few words about the diversion of people with a learning disability from criminal punishment to hospital. The amendment would, after all, provide that that could not happen unless they also had another mental disorder. First, it is true that prison is not an ideal environment for people with a learning disability but there is evidence that there are very many people with a learning disability in the prison system anyway. There may be very good reasons for wanting to divert them away from it, but the Mental Health Bill, if enacted even with this amendment, would allow them to be diverted from it only if they were "abnormally aggressive or seriously irresponsible". It would leave most prisoners with a learning disability exactly where they are. There are many potential public policy options for providing better support to people with a learning disability who find themselves within the criminal justice system, and I am not convinced that using mental health law, which will only ever touch a small minority of them, is a particularly effective one. Secondly, my concern that the "aggression or irresponsibility" caveat can make mental and physical illness less likely to be diagnosed in people with a learning disability applies just as much to people inside the criminal justice system as to those outside it.
	My concern in moving this amendment is not only on the grounds of the principled position that a learning disability is completely different from a mental illness, and should not be treated as such. I have always held that position, and I still hold it now. I am pleased to see that the Disability Rights Commission, commenting on my amendment, agrees with me, describing Clause 2 as it stands as,
	"discriminatory, stigmatising, inappropriate and unnecessary".
	My concern is also that the clause may bring under the scope of mental health legislation people who even the Government think should not be there,or may put them there for the wrong reasons, so that the underlying cause of their aggression or irresponsibility is not addressed.
	As the clause stands, it would allow people to be sectioned on the basis of learning disability when other courses of action would be more appropriate;it incentivises bad practice when we know thatgood practice is far from universal; it allowsthe symptoms—aggression or irresponsibility—to overshadow the causes, be they mental or physical ill-health or simply distress; and makes it less likely that people with a learning disability will get the treatment that they need. I hope that the Minister will be able to begin his new job on the best possible footing, by finding a way of making sure that people with a learning disability are not disadvantaged by mental health law. I beg to move.

Baroness Barker: During my time in this Chamber I have learnt one thing—that the noble Lord, Lord Rix, is the worst act to follow because he always has the best lines, and that is my position today. Anyone who spent more than about 30 seconds on the Joint Committee was left in absolutely no doubt as to his commitment over many years to this subject, and his tenacity. All that we could do, strong-minded people though we were, was to emerge from that committee in complete agreement with everything that he said and to be prepared to line up with him. We did that because he is absolutely right—and he is absolutely right in proposing this amendment.
	Being aggressive or irresponsible is not a reason in itself for people to be subjected to mental health legislation. Because someone has a learning disability and displays those two things it is simply wrong to make them subject to a different degree of judgment from other people. It is important that we support the noble Lord, Lord Rix, because he is right that there is huge scope not only for wrong or lazy diagnosis but for people with learning disabilities being subject to a completely different degree of assessment from other people, which is fundamentally wrong.
	I remind noble Lords that during the passage of the Mental Capacity Act, I was one of those who argued most strongly that there should be an equality provision in that Act and there should not be discrimination. It is beholden on people such as me who hold that view, which is sometimes quite controversial in its application to some areas of healthcare, that we do so consistently. If we cannot be consistent on such a matter of principle, we should not be here at all.
	The noble Lord, Lord Rix, is absolutely right in saying that people with learning disabilities have the right to expect the same treatment and regard as anybody else. That has been the thrust of legislation in recent years, not least with the Mental Capacity Act, and it should be the thrust of this legislation too. At a very simple level, having a clause in the Billin which the words "learning disability" and "abnormally aggressive or seriously irresponsible conduct" come together reinforces some of those stereotypes, about which my noble friend Lord Addington spoke so eloquently in relation to the previous amendment.
	For all the reasons that the noble Lord, Lord Rix, outlined with better erudition than I ever could, I believe that we should support him.

Lord Adebowale: I shall support the amendment proposed by the noble Lord, Lord Rix, by making two points and telling a story, which illustrates the point forcefully, if nowhere near as strongly as the story that the noble Lord told. I and the organisation for which I work—and, again, I declare an interest with regard to Turning Point, which provides a service to about 8,000 people with learning disabilities, some of whom have very challenging behaviour problems too—believe that learning disability should not constitute mental disorder. In fact, the principle is one of equality; it is as simple as that. None of this is rocket science. Without wishing to go back to an earlier debate, this is about the principle of equality.
	The most appropriate legislation under which the majority of people with a learning disability should receive treatment is the Mental Capacity Act, when it comes into force in April. People who lack capacity who are also subject to the provisions of the Mental Health Act 1983 will still be protected by the Mental Capacity Act with regard to the types of decisions or actions affecting them. Therefore, when a decision unrelated to treatment for mental disorder needs to be made, including decisions about physical healthcare, welfare or financial matters, an assessment must be made of the individual's capacity to make that particular decision when it needs to be made. It is important that the code of practice spells out that the principles and provisions of the Mental Capacity Act would apply to all such decisions or actions, regardless of whether the person was subject to the provisions of the Mental Health Act 1983. There is a danger that the behaviour of some people who have a learning disability will be misinterpreted and mistakenly attributed to mental disorder. In my20 years or so of working with government departments, I have worked with many people who have either a learning disability or another disability and whose behaviour has been extraordinarily aggressive. They would certainly be very shocked to find themselves coming under the Mental Health Act. People with a learning disability are in danger of having their behaviour misinterpreted and mistakenly attributed to a mental disorder. As has been pointed out, that is quite simply wrong, when there is a physical or environmental reason for their behaviour.
	To illustrate this point, let me tell you a story, which ended in the use of the Mental Health Act.Mr S, who has a severe learning difficulty, autismand communication difficulties, lives in a residential setting. He was detained under the 1983 Act because he was becoming increasingly agitated and exhibited aggressive behaviour, banging his head against a wall. It was later discovered—this is shocking but true—that Mr S had a small twig in his ear, which was causing him distress, as it would most people, and which he expressed by his agitated behaviour. This scenario shows how the distress of a person with a learning disability can be automatically attributed to a mental disorder without paying sufficient attention to physical factors. This is about not just lazy diagnosis but making fatal assumptions.
	The issue is education and skills among professionals. It is about being able to correctly assess whether a person has a co-existing mental health problem alongside a learning disability. Here again it is inappropriate to use mental health legislation to compensate for the lack of these skills if a person does not have an additional mental disorder. The Government should support the amendment of the noble Lord, Lord Rix, but might also want to make it explicit that, if a person has both a learning disability and a co-existing mental disorder, they should be able to receive appropriate treatment under the Act.

Earl Howe: The noble Lord, Lord Rix, has once again spoken very powerfully on an issue in whichhe is an expert. I have huge sympathy with the points that he has made. He is passionate—rightly so—about the distinction between learning disability and mental disorder. He does not want to see one confused with the other. I am entirely with him on that, as with the points on discrimination and stigma, and on wrong and lazy diagnosis. In expressing that support for his amendment, I have two worries, both of which are practical.
	By removing lines 10 and 11 from the clause, the noble Lord, as he acknowledged, is effectively excluding people with learning disabilities from the scope of the Mental Health Act altogether, unless at one and the same time there is a mental illness or mental disorder also present. I worry how that leaves someone with a learning disability who is behaving in a very aggressive or irresponsible way and who may be a risk to himself or to others. If the police are summoned to a scene where they witness such behaviour, what are they to do? The noble Baroness, Lady Finlay, suggested that the provisions of the Mental Capacity Act might come into play here. I want to ask her or the Minister whether we are quite sure that the provisions of that Act could be used to administer care and treatment in the person's best interest. I am far from clear that the provisions of that Act would cover this kind of situation, because the Act does not authorise detention. If that is correct, the police's only recourse would be the criminal justice system. That seems to me to be an even worse avenue for the individual, and certainly a much less therapeutic one, than to be admitted to hospital. I am simply making a pragmatic point here.
	My second worry was raised by various witnesses giving evidence to the Joint Scrutiny Committee on the 2004 draft Bill. A case known as the HL case was dealt with recently by the European Court of Human Rights. The decision in that case, in the view of at least one witness, means that whatever the definitional niceties that we have been talking about, it will be necessary to devise some sort of legal framework whereby people with learning disabilities can be admitted to hospital and given the kind of safeguards provided by the Mental Health Act and this Bill. I am thinking particularly of the extension of the tribunal's remit. If I am broadly correct about that case and its effect, it is important. I should be interested to hear what the Minister has to say about it. If I could put a brutal question to him: is the Bill a quick and ready short cut to addressing the findings in that case?

Lord Hunt of Kings Heath: I am very grateful to the noble Lord, Lord Rix. I read his speech on Second Reading, and I understood that he would be tabling the amendment. His amendment seeks to ensure that people with a learning disability couldnot be detained for treatment, made subject to guardianship, or placed on supervised community treatment under the 1983 Act unless they also had another clinically recognised mental disorder.
	Indeed, very few of the provisions of the Act would apply to a learning disability that was not accompanied by any other recognised mental disorder, even if associated with,
	"abnormally aggressive or seriously irresponsible conduct".
	I have the greatest respect for the noble Lord, Lord Rix, who is a tireless advocate for the rights and interests of people with learning disabilities. I know that he has met officials in my department, but I have to say that the Government are not in favour of this amendment. He discussed on Second Reading his involvement in the development of the wording in the current Act in relation to learning disability; that is the very wording,
	"abnormally aggressive or seriously irresponsible conduct",
	that his amendment now asks your Lordships' House to remove.
	We are, of course, well aware of the strongly held view that learning disabilities should not be labelled as a mental disorder, both on principle and for fear of exacerbating confusion between learning disability and mental illness. The noble Lord, Lord Rix, will know that I understand that point of view. We recognise that learning disabilities are not the same as mental illness, but they are recognised disorders or disabilities of the mind. The crux of this issue is that the Act is not about labelling people; it is about making sure that they can be treated where necessary. Excluding people with learning disabilities from the definition entirely would risk the very small minority of those people who need compulsion not getting it, or else would require clinicians sometimes to apply inappropriate diagnostic labels to ensure that they can give the treatment that they believe is needed. That is why learning disability remains a mental disorder for the purposes of the Act generally. None the less, we all agree that the powers in the Act should not be used just because someone has a learning disability; hence our decision to include a special provision to preserve the effect of the current Act in relation to learning disability, despite the abolition of categories of mental disorder, in particular those of mental impairment and severe mental impairment. Thus, in future people who have a learning disability will be treated in exactly the same way as they are at present, but we are not persuaded that we should go further.
	I fully accept the comments that have been made about the potential problem of misdiagnosis. I have taken careful note of the points that the noble Lord, Lord Rix, has made about the importance of ensuring good practice in the diagnosis of mental health problems in people with learning disabilities. I acknowledge that people who have a learning disability have special difficulty in communicating the nature of their health problems in ways that may be mistaken for mental disorders. I agree that picking up physical health problems is an important issue for anyone with a mental disorder. For everyone who may be assessed for possible mental health problems, it is important to establish that their psychological presentation is not a reflection of underlying physical health problems. That is especially so in the case of people with learning disabilities.
	We do not believe that by so defining the clause we are stigmatising people with learning disabilities. In no way does a learning disability qualification suggest that abnormally aggressive or irresponsible behaviour are associated with learning disabilities; quite the opposite. It is not inappropriate, and it certainly makes no assumption that detention in hospital is the best approach for people with learning disabilities who offend, but it makes sure that the option is open to the courts where appropriate. The noble Lord, Lord Carlile, asked what "abnormally aggressive" and so on means. I am advised that the term has been used since 1983, and that the words have to take their normal meaning. Case law suggests that conduct is to be judged by general standards, not those of other people with a learning disability.
	I say to those noble Lords who have expressed concern that the real problem here is about misdiagnosis and a lack of adequate services—and I suspect that I will repeat this on a number of occasions—that good practice is an area in which it can be difficult to legislate, especially where we want to legislate in such a way as to give mental health professionals the maximum latitude to make decisions flexibly in the best interests of the mentally disordered person. But clearly the code of practice is an appropriate avenue in which to look at the issues that the noble Lord has raised. I will look at ways of strengthening the code of practice to take account of his and others concerns in this area.
	On the use of the Mental Capacity Act to guarantee treatment for people with learning disabilities, it is important to make it clear that many such people have the capacity to make their own decisions about treatment, even when they are experiencing particular mental health problems, and we must not assume that they do not. For those people, the Mental Health Act is more appropriate, because it treats them in the same way as anyone else who refuses to consent to the mental health care that they need.
	The answer to the question asked by the noble Earl, Lord Howe, is no. He can find the answer in Part 2, in the so-called Bournewood safeguards, which deal with the situation that he raised. The Government's view is that, notwithstanding the need to ensure that diagnosis is as effective as possible, the code of practice needs to be reviewed in the light of the comments made by the noble Lord, Lord Rix. This amendment, if adopted, would potentially leave a small minority of people with learning disabilities in a more vulnerable position than at present. That is why we would prefer to leave the safeguard in the Bill.

Baroness Barker: The Minister said at the beginning of his remarks that if the amendment in the name of the noble Lord, Lord Rix, were passed, there would be a danger that some people with learning disabilities who needed compulsory treatment would not get it. Why should the situation be any different for people who have learning disabilities as opposed to those who do not? Will the Minister also answer the question asked by the noble Baroness, Lady Finlay of Llandaff, about why only part of the Joint Committee's recommendation finds its way intothe Bill?

Lord Rix: Those were the New Year's greetings that I expected, whether from the noble Lord, Lord Warner, or from his replacement. I knew that the Government would say what they did, because in my discussions with the Bill team last week and in the two letters that I received, in particular the one from the noble Lord, Lord Warner, more or less exactly the same points were made. I realise that I have a bit of an uphill struggle. However, I would like to meet the Minister again before Report to see whether we can reach some compromise and to discuss strengthening the code of practice, which I think is terribly important. The code of practice would be a very good background for sorting out this problem about learning disability, especially if Amendment No. 72 were passed, as that would make the code a little more enforceable.
	I have a sense of déjà vu. The conversation that I had with the noble Lord, Lord Elton, 24 years ago was not dissimilar to the conversation, albeit one-sided, that we have just heard from the Minister, who put the same sort of arguments. Twenty-four years ago, I queried whether the meaning of the words "abnormally aggressive" and "seriously irresponsible conduct" was quite clear. I believe that if I were a diagnosing doctor—rather, if I were two diagnosing doctors—I could easily say that the person was being abnormally aggressive or seriously irresponsible and we would back each other up; it would be much easier and quicker to do that than to look for the root cause of the problem.
	I am not convinced, although I totally understand the Government's arguments. For years, we described learning disability as a mental handicap. As noble Lords will know, we removed the words "mental handicap" from our organisation's title; it is still called Mencap, as an abbreviation, although that could now apply to the Mental Capacity Act rather than to the Mental Health Act. The word "mental" and the stigma of applying the Mental Health Act to people with a learning disability are closely related. That is why I should like a clearer definition in the Bill. However, until we can have our discussions, as I hope we shall, I beg leave to withdraw the amendment.

Earl Howe: I shall also speak to Amendment No. 5. We come now to another issue that in many ways epitomises the fault line that separates the Government and the mental health community over the Bill. The question that Amendment No. 4 poses is to what extent the definition of "mental disorder" as it appears inthe Bill should be qualified by exclusions that restrict the manner in which the powers in the legislation may be applied—in other words, should the Bill delineate clear boundaries around the new and simplified definition of "mental disorder" as a guide to clinicians and other practitioners who will be called on to implement the Bill?
	The Government's broad position is simple. They maintain that if the whole point of the legislation is for each patient to be treated according to his or her needs, we should not want clinicians to be sidetracked by or hung up about diagnostic labels of any sort. Professionals should be clinically free to decide what steps it is right to take in particular circumstances. If a particular sort of behavioural tendency is not classified as a mental disorder in any case, it is unnecessary to spell out in the Bill that it should not be regarded as such.
	I suspect that that is the line that we shall hear from the Minister today, but I suggest to her that there is another way of looking at this question. It has to do with two things: the nature of the decision-making process by clinicians and the entire context in which powers of compulsion are used and will continue to be used. When a clinician has to decide whether or not to detain a particular individual compulsorily, he first has to make a diagnosis based in large measure on the individual's behaviour. But a diagnosis of mental disorder is not value free. It is not like a diagnosis of measles, which rests on clear clinical signs and symptoms. Rather, it depends ona subjective judgment—a judgment based on knowledge and experience, certainly, but ultimately one that is dependent on that clinician's discretion.
	Certain sorts of behaviour that materially depart from societal norms can be viewed through one set of value judgments as deviant and dangerous or through another as merely distasteful and eccentric. One example of that would be certain sorts of sexual behaviour, such as gender dysphoria, transsexualism and fetishism. Some people tolerate these things; some people do not. In fact, disorders of sexual preference are included in the WHO's classification of mental and behavioural disorders, under so-called ICD-10. Yet do we really wish to signal to clinicians that they are entitled to regard someone as mentally ill simply because they display these tendencies? I suggest that we do not. Indeed, I completely disagree with the Government when they make it clear in paragraph 32 of the Explanatory Notes that they intend to bring conditions such as fetishism within the scope of the 1983 Act.
	There is a wider point. Parliament has recently outlawed discrimination on grounds of sexual orientation. Without an exclusion of the kind in paragraph (b) of the amendment, the way would be clear for clinicians to allow their own values to interfere with what should be the only question in their minds: does this person or does he not have a mental disorder that makes him suitable for psychiatric detention? The value of an explicit exclusion is that it provides a marker to make sure that practitioners carefully evaluate the basis for compulsory treatment in accordance with accepted parameters.
	Placed alongside that idea is the context in which these often difficult and painful decisions are to be made. Among the black and ethnic-minority communities, mental health services are regarded with intense suspicion. Why is that so? It is because, as we have heard already, a disproportionately high number of people from those communities are sectioned and detained against their will.
	If we accept the proposal in the Bill for a broad definition of "mental disorder", which in principle I am perfectly prepared to do, the quid pro quo for that should be a set of riders that make it absolutely clear that the Bill is not designed as a licence to increase the numbers further. Any definition that might serve to do that, however well intentioned, should be qualified explicitly to ensure that it does not. If it is admitted that under the 1983 Act unwarranted discrimination takes place as a result of racial stereotyping, that on its own is the answer to anyone who says, as the Government have been wont to do, that cultural beliefs and behaviours are not mental disorders and therefore cannot legally be used as grounds for detention. If, in practice, that proposition is being widely ignored, then we have a positive duty to promote equality of treatment in the Bill. We can do that by means of an explicit exclusion, even at the risk of stating what to a parliamentary draftsman might seem technically otiose.
	However, there are other ways in which the breadth and generality of the new definition of "mental disorder" could be seen as risky. Let us take substance misuse. The Bill provides for an exception for dependence on alcohol or drugs but it does not provide an exemption for someone who is simply drunk or has misused drugs in a way that will not cause him long-term harm, if I can make that assumption. Surely we do not want the legislationto signal to clinicians that being drunk or having taken an illegal substance in itself equates to amental disorder. Under ICD-10, both misuse and dependence are covered and therefore, in my view, we should have an exclusion to cover both. Once again, such an exclusion would act as a marker to prevent decisions—sometimes very fraught decisions—being taken on the wrong clinical basis.
	Curiously enough, the Government have accepted the argument that there should be an exclusion covering substance dependency. Presumably, in doing so, they accept that there is a point to having an exclusion of this sort and that having it does not pose any serious risk that someone might be denied compulsory treatment just because their disorder manifests itself in certain behaviour. That must be the Government's position, and, if so, I agree with them. The risk is not one that should concern us. On the contrary, we want to say to practitioners, "By all means use your professional judgment and discretion about what may be right for the individual patient, but you can use the powers of compulsion granted to you in this Act only if you are certain that there is a mental disorder present that is quite separate from any of the behaviours or conditions listed in this amendment". That is surely not a complicated message or one that risks any denial of psychiatric treatment when it is genuinely needed.
	There are two other categories of exclusion listed in the amendment that I have not covered: illegal or disorderly acts and political beliefs. As regards illegal acts, the point is quite simple. When someone is behaving in a manner that is clearly illegal, whether the behaviour consists of causing an affray in public or committing acts of paedophilia, such an act should not be seen by the police, doctors or anyone elseas a reason for applying powers of psychiatric compulsion. Criminal acts should be dealt with using the accepted means provided for under criminal law, and doctors need to be clear about that.
	With disorderly acts and political beliefs, we are into human rights territory. There are certain advantages to having a broad definition of "mental disorder", as proposed in the Bill, but one potential downside is that it lacks certainty. All of us are old enough to remember regimes around the world in which psychiatry was misused to clamp down on behaviour that related not to a treatable mental disorder but, rather, to socially or politically unacceptable behaviour. The definition of "mental disorder" was deliberately twisted to encompass matters that were no concern of medicine, still less of the state. I do not say that there is a realistic prospect of the same happening in this country—certainly not in a systematic way—but, once again, we need to remember the importance of perceptions and public trust.
	The powers of compulsion granted in the Bill are no trivial matter. If among certain people—not least black and ethnic-minority communities—psychiatry is seen, however unjustifiably, as a ready means for the establishment to lock away whomever it wants on whatever pretext it chooses, then the effectiveness of psychiatric services in assessing and treating genuine mental disorders will be diminished.
	I ask the Minister one thing: not to reject the amendment out of hand, as her brief probably urges her to do, but to take it away and reconsider it. All the things covered in it matter once we move away from the theoretical ideal world, in which policy-making tends to operate, to the real world, where real decisions are taken about real people. That is the platform on which I am standing, and I hope that the Government will be able to join me on it. I beg to move.

Baroness Murphy: A subtext runs beneath many of the Government's proposals. I say, "Mind the gap". In trying to change the 1983 Act, the Government, in almost every single clause, are concerned to try to include patients who have been excluded from the 1983 Act as a result of poor psychiatric practice. That is the subtext of much of the Bill. In trying to close those gaps they have forgotten that the law has been used only as an excuse.
	Take, for example, a 20-bed unit with 110 per cent occupancy. When one considers whether to admit someone who has a mental disorder, one will consider whether he can be treated, whether he will be out again in 48 hours and whether he can be supported in the community. One could also consider admittinga rather challenging, difficult Mr Smith who is persistently drunk, never takes his medication, and about whom it is unsure whether he can be dealt with over the next two to three months, so he will be in the bed longer. When someone asks why one did not admit this or that person, the answer is that the law did not allow it. That is repeated over and over again. I cannot tell you how often it happens. That is what lies behind the very wise amendment of the noble Lord, Lord Adebowale, who sees people excluded from care every day of the week.
	Is the answer to put such a matter in legislation, widening the scope of the Act to include many people who would not otherwise be considered for detention? For various reasons the answer is no. The answer is training, resources, better understanding of what is possible and better understanding of how to help people with difficult and challenging problems such as substance misuse and paedophilia, but one cannot include them all.
	The amendment is about stopping detention creep. In this country it is quite difficult to get people to take it seriously because since the 1959 Act we have had a tradition of using psychiatric hospitals and units almost exclusively, but not entirely, for the care of people with mental disorder. But that exclusiveness is a relatively recent phenomenon. Mental hospitals and asylums in the 19th century and before and after the First World War became repositories for all kinds of socially excluded people when there did not seem to be anywhere else to put them. In those days if one were in a mental hospital, one was detained by default. The destitute unmarried mother, the epileptic, the merely eccentric and the socially incompetent all tumbled into the asylums. They were a social inconvenience but everyone colluded in saying that there was nowhere else for them to go. In the 1970s, when I first worked in psychiatric hospitals outside the great fringe around London—what we call the Epsom archipelago—the place was full in the back wards of people whom we had enormous difficulty diagnosing with anything.
	Society does not know what to do with other social misfits. One group is those who are persistently addle-headed on drink and drugs. They are very difficult to help. Of course, there are ways to help them, but it is not easy. Paedophiles form another group; the religious fanatics who belong to the Moonie loonies and the like is another. We know that those people are not as we would like them to be; they are not like us; they probably need some help, but how we should help them is rather obscure. No doubt a significant percentage of them suffer, from time to time, with mental disorder which would bring them properly under the scope of the Act, but it is a profound mistake to include all categories of people behaving badly simply because we do not have any other answers.
	The Mental Health Act is designed, as we keep saying, to provide a check on clinical discretion and to give clear boundaries to protect against improper use. The Government believe that society in general is happy to leave decisions, such as the scope of the Act, in the hands of professional experts. I find that quite astonishing. They obviously do not know as many professionals as I do. I regret that I do not find it difficult to envisage the inappropriate use, perhaps well meant, of mental health legislation for non-medical purposes, for social convenience and control—"Get the paedophiles off the streets". The pressure on services to find solutions to the presently insoluble problems will be massive. Exclusions ensure that practitioners carefully consider the basis for compulsory treatment. If there is an underlying mental health diagnosis, a person is covered by the Act; if there is no diagnosis, it is unhelpful and inappropriate for the mental health services to manage that person.
	The revised definition of mental disorder is deliberately simplified and free of diagnostic categories in the Bill, so it is all the more important to be clear about the exclusions, which, after all, are a feature of the legislation in all comparable jurisdictions in the common law world, including our near neighbours Ireland and Scotland.
	I turn to sexual behaviour. When I was a trainee psychiatrist, we were obliged to learn all the ways to treat homosexuality, even though at the time many of us were horrified that it came within the scope of what we were meant to learn. Until recently, it was included in ICD 10. There is still a wide range of sexual behaviours in ICD 10 and so are many other mental phenomena which by themselves would not necessarily fall into the category of mental disorder; for example, excessive gambling and grief. Just because something is in ICD 10 does not mean that it should necessarily fall within the Act. We know that people whose sexual behaviour departs from socially acceptable norms are likely to be stigmatised. They may or may not have a mental disorder. Their behaviour may or may not be contrary to criminal law. Without this exclusion, however, people with gender dysphoria or transsexualism and, indeed, your everyday rubber fetishist will be brought within the Act as well as paedophiles.
	Forensic scientists tell us that the current exclusion criteria are important in enabling them to distinguish between those who are truly amenable to help and would warrant a detention because they have an additional mental disorder, and those who do not. From a psychiatric point of view, there is no necessity to remove the exclusion of pure disorders of sexual preference from the definition of mental disorder. As I say, the Government are obsessed with folk who do not get into treatment. This is not the right way to approach that.
	On illegal or disorderly acts and political beliefs, there should be a clear distinction between people who have a mental disorder and those whose behaviours and practices are simply unacceptable to society in general. There are, after all, lots of people who say that those young British Muslim terrorists who blew themselves and others up were mad—not a far step from thinking that all people who want to see an Islamic state in Britain should be locked up in a mental hospital. It has been done elsewhere in the world, as the noble Earl, Lord Howe, pointed out. Psychiatry has been abused in Nazi Germany and many other countries and, in the 1960s and 1970s, in the Soviet Union.
	I spoke to many colleagues in the Soviet Union during that time, when I was a young trainee psychiatrist and the Soviet Union's psychiatrists were excluded from the World Psychiatric Association. Most of the psychiatrists working in the Soviet Union at that time believed that they were doing the right thing—there were of course those brave dissidents, many of whom managed to come here and other parts of western Europe. Most of the psychiatrists did it with the best of intentions. We must remember that. That is why they were excluded from the World Psychiatric Association; it was not imposed on them by their Government.
	The effect of not having exclusions further confuses the role of psychiatry and mental health services in the public mind, moving it from its proper aim of the assessment and treatment of mental disorder into social control. It further reduces the acceptability and, therefore, effectiveness of the services. That will have a serious impact on people from black and minority-ethnic communities, as we have already heard. I have covered the third exclusion of cultural, religious or political beliefs, and the joint scrutiny committee agreed.
	The Government are concerned with theexclusion of people with mental disorders who have unusual cultural beliefs. I cannot think why they feel that there is a risk that they will not be included,since minority cultures tend to be over-representedin those compulsorily detained. If there is a misunderstanding, it is, rather, the inverse of what the Government fear. What is their evidence on this? In their response to the scrutiny committee, the Government made the extraordinary statement that,
	"cultural, religious and political beliefs do not constitute mental disorders, but may sometimes be symptoms of a clinically recognised mental disorder".
	In other words, it is possible that you could have no delusions, hallucinations, thinking disorder, speech defect, disorder of emotions or difficulties with your emotional relationships, but could have expressed your disorder simply through a cultural or political belief. That strikes me as profoundly dodgy ground.
	These amendments are to protect against inappropriate detention, and to protect professionals from being used inappropriately by society. With good training and better resources to treat people with a wide variety of disorders and ancillary problems—including those the noble Lord, Lord Adebowale, is talking about—we should certainly be able to solve this problem. Widening the definition, however, is not the answer.

Lord Adebowale: I speak to Amendment No. 5 in my name. The Bill rightly clarifies that dependence on alcohol or drugs is not a mental disorder that justifies compulsory treatment. By making this clear, however, it could inadvertently mean that a person with a dual diagnosis of a mental disorder and dependence on alcohol or drugs might not get the help they need under the Act. Before I go on, I must once again declare an interest: Turning Point is probably the largest provider of services to people with alcohol and drug problems outside the NHS. I thank the noble Baroness, Lady Murphy, for her kind words on my amendment before she had heard me speak. That is quite nice.
	My amendment is complementary to Amendment No. 4. In the United Kingdom, it is estimated that half the people in drug or alcohol services also have a mental health challenge. Around one third of patients in mental health services also have a drug or alcohol problem. My organisation works with many people who have multiple needs. We estimate that at least one in five people we support—at last count we provided a service to 136,000 people—with mental health challenges also need help with serious substance misuse.
	All too often, the presence of a drug or alcohol problem alongside a mental disorder is used as grounds not to treat people. They are turned away, as has been pointed out, from mental health services when they are in the greatest possible need. From our experience, people with a so-called dual diagnosis of mental health and substance misuse problems have been turned away from mental health services in the past due to the current exclusions. Consequently, people are not receiving the help they urgently need. This has consequences across the social care system. Their mental health deteriorates even further and community services endeavour to help, despite being ill equipped to do so.
	I offer an example. The Bill is often given colour when we talk about its effects on human beings. Sarah is 38 and has a diagnosis of depression and borderline personality disorder. She also has long-standing drug and alcohol difficulties and self-injures on a regular basis. When admitted for in-patient treatment, sheis often put on a contract stating that she will be discharged if she self-injures or uses drugs or alcohol. These are her coping strategies; the use of alcohol or drugs is often a form of self-medication, a way of coping with mental health issues. So she invariably resorts to drinking or self-harm, and so she is discharged. On occasions she is not admitted at all when expressing suicidal thoughts because she has been drinking.
	Simply educating mental health staff about substance misuse will not be enough to solve this problem. While I agree with the comments about resources and training, it is not enough. The reasons why people use drugs and alcohol are complex and often misunderstood. Sometimes it can be to self-medicate and treat the symptoms of mental illness but is often interpreted as resistance to treatment or to engagement with services. It is important, if we are going to have a Mental Health Act and spend time engaged in ensuring that those in need receive treatment, that we pay attention to this group, which is a growing challenge to mental health services throughout the country. That has already eloquently been pointed out by the noble Baroness, Lady Murphy.
	I want to comment on the race issue, without repeating what has been said already here or in the joint scrutiny committee. There is considerable evidence that BME groups, particularly those from Afro-Caribbean backgrounds, are more likely to be diagnosed with a severe mental disorder. Simplified definitions where exclusions are removed increase the degree to which diagnosis of mental disorder depends on the subjective judgment of clinicians, which the literature now states with ample evidence is sometimes subject to quite racist interpretation. I am sure that my noble friend Lord Patel of Bradford can give chapter and verse on this, as chair of the Mental Health Act Commission.
	Given the evidence that racial stereotypes are significant factors underpinning notions of mental disorder, that is likely to amplify the extent to which race is a factor in defining such disorder, in effect widening the pool of people to whom legislation could be applied and who will be affected by the existing skew toward black and minority-ethnic groups, a situation made worse by amendments.

Lord Alderdice: It seems to me that this particular group brings us to the heart of some real difficulties in applying legislation, and the law in general, to mental illness. It is not like physical illness; it is about the very essence of people and what they are, which is a very difficult issue.
	The issues of diagnosis, management and practical reality all come to ground in this particular group, as the Government have recognised by introducing a specific exclusion. Nothing in the provision says that the exclusion is on a point of principle or a particular kind of difference in terms of psychology or psychiatry. It is quite clear that dependence on alcohol and drugs involves a disorder of the mind. There is no doubt about that. There is not much doubt either that it is also similar to lots of other kinds of addictive behaviour. When treating one of these folk, often you get rid of the alcohol problem and they turn to drugs; then you get rid of the drug problem and they turn to gambling, an eating disorder or whatever.
	It is not an issue of principle, and the Government know perfectly well that if they were to include all those people as likely to be detained, the services would collapse completely because of the enormous number of people involved. It is not to do with there not being a possibility of violence; in fact, there is a much greater likelihood of violence from this group of people than from people suffering with schizophrenia. However, the Government recognise that they cannot cope. The truth is that they cannot cope with lots of the other folk they are going to bring in anyway. It is hard enough to find a bed for a psychotic young suicidal patient at the moment, and it will be even worse with a lot of these other things.
	Let us take the reason for some of the exclusions being set down here. Some are about real difficulty of diagnosis. If, for example, someone comes along and speaks about being low-spirited—they are not sleeping at night, they have lost interest in a lot of their affairs and are not behaving in their usual way—they might well have a depressive disorder but, of course, if their wife died three weeks ago, it would be a perfectly normal reaction to one of the vagaries of life. As my professional colleague the noble Baroness, Lady Murphy, pointed out, the difficulty is that if you do not look for all of the things that are around, the diagnosis can be faulty.
	Taking personality disorder as an example, there is often a circular argument: this person is breaking the law; they do it repeatedly and do not stop; there must be something very disturbed about somebody who behaves in that way; therefore, they have a personality disorder and need to be treated. More insidiously, if the psychiatrist does not have much understanding of or sympathy for the cultural or religious background of the person involved, there is another kind of circular argument: this person has some very strange ideas; they might be religious ideas. I come from a part of the world where a lot of the religious ideas that are very current among people would be regarded as quite mad on this side of the water. I refer not just to religious ideas. One colleague came across to work in Northern Ireland, and after interviewing one patient said, "I think we have a really paranoid person here". When I asked why, they said, "They think that if they go up this particular road they will be attacked because all sorts of people will be against them because of their religion". I said, "They are not paranoid; they are realistic".
	I guarantee that the reason for the undoubted fact that many more people from Afro-Caribbean backgrounds find themselves in a mental hospital is that there is less understanding of the cultural and religious beliefs and actions of many of those people by my colleagues in psychiatry. You find a difficulty in coping with and managing someone who has a very different set of understandings of what life is about. You think, "It's a bit strange. How am I going to deal with it?" At present, the fastest growing special interest group in the Royal College of Psychiatrists is the spirituality group. It is not so long since there was no such group. Why? Because 10 or 15 years ago, it would not have been politically correct to regard spirituality as a proper professional interest within psychiatry. Now, people have begun to change their view of it.
	This amendment tries to point out that, without a serious look at understanding issues such as culture, politics, religion, breaking the law, sexual behaviour and so on, we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society. That is a real problem for colleagues in psychiatry, not least because of a move to diagnosis on the basis of people's behaviourand a set of symptoms, rather then necessarily understanding something more about the depth of the disorder and its likely prognosis.
	Unfortunately, over the past few years I have heard from Ministers a set of views that suggests that there is a simplicity about all of this—that it is very easyto be clear about certain matters; that clearly psychiatrists are not taking their responsibilities seriously and are avoiding all sorts of issues because they are distasteful or difficult. The reality is that these are difficult questions, not susceptible to clean bits of legislation. Psychiatrists sometimes have real difficulty assessing these things, and find themselves lapsing back into making mistakes because of their own cultural, religious, or political views.
	I ask that we take these things seriously, not because Amendment No. 4 necessarily solves all the problems, but it points up some of them, and I hope that Her Majesty's Government take that problem very seriously.

Baroness Royall of Blaisdon: I am grateful to noble Lords for tabling Amendments Nos. 4 and 5. My noble friend Lord Hunt mentioned earlier that, as a general rule, we have sought in the Bill to remove arbitrary obstacles to the use of compulsion where it is called for by the risk posed by a person's mental disorder. The more we qualify and limit the definition of mental disorder, the greater the risk that some people will be excluded arbitrarily to their own disadvantage and potentially to the detriment of other people. It serves no one's interests if decisions end up being taken on the basis of diagnostic or legal labels rather than the needs and circumstances of individuals.
	We recognise that these are complex issues. We are not being simplistic, and I stress that we takes these issues very seriously. In relation to alcohol and drug dependence, I do not think there is any disagreement between us. Although it is clearly clinically regarded as a disorder or disability of the mind, it is excluded from the Act at present. The Bill keeps it that way, as we are persuaded that it is not appropriate to use the Act to force people to accept treatment for addiction where it is not linked with another mental disorder.
	However, we do not agree that substance misuse in general should be excluded. The term "misuse" is used in a variety of ways. If all it means is the use of alcohol or of drugs that have the potential for harm or which are illicit, then the exclusion is unnecessary. Merely using alcohol or drugs is not regarded clinically as a mental disorder, and our understanding is that the same applies to an episode of misuse. However, if "misuse" is intended to mean the consequences of such behaviour, then we profoundly disagree with the suggestion that it be excluded. Many consequences of misuse, from acute intoxication to substance-induced psychosis and withdrawal states, are recognised mental disorders. Any of them, even intoxication in its most severe forms, might, in particular circumstances, warrant compulsory intervention under the Act. It would be wrong, arbitrary and to the detriment of patients to exclude such consequences. They are not excluded now, yet it is not, as far as we are aware, suggested that people are commonly, if ever, detained inappropriately as a result. If the problem is that psychiatrists fear being pressurised to detain alcohol and drug misusers inappropriately, I do not believe that that is a compelling reason for excluding people who might otherwise benefit. If they do not think detention is clinically appropriate, or patients do not meet the relevant criteria, psychiatrists should have no difficulty explaining to their colleagues that using the Act is not an option.
	The amendment next seeks to exclude sexual behaviour. If we are literally concerned with sexual behaviour, then we again believe the amendment is unnecessary. An episode of sexual behaviour, however unusual or, indeed, illegal, is not, of itself, diagnosable as a mental disorder, any more than setting fire to something constitutes pyromania. However, particular sexual behaviour may well be a sign of a mental disorder. Noble Lords have been careful to draft the exclusion in terms of no one being considered mentally disordered solely on the basis of sexual behaviour, but, even so, I worry what effect the exclusion might be interpreted to have, rightly or wrongly, in cases of people who, for example, have a personality disorder that manifests itself in their sexual behaviour.
	The noble Earl and the noble Baroness, Lady Murphy, mentioned gender dysphoria and gender identity disorders. While we acknowledge that gender dysphoria is clinically recognised as a mental disorder, the allegation that people can now be detained because of it presupposes that it could be regarded as sexual deviance. We struggle to see who, let alone which healthcare professionals, would think of gender identity disorders in those terms. Similarly, we do not see how a new exclusion for sexual behaviour would change the position. If the exclusion is meant to protect lesbian and gay people, it is again unnecessary. It is now firmly accepted that homosexuality is no more a mental disorder than heterosexuality. We do not believe any doctor would attempt to detain a patient on the basis of sexual orientation, let alone that another doctor and an approved mental health professional would agree, and, if they did, we are confident that no court would uphold their decision.
	If, however, the intention is to replicate the current exclusion for sexual deviance, we think it is wrong in principle. Although we have heard contradictory arguments, our understanding is that there are conditions that a lay person might regard as sexual deviance that are clinically recognised as disordersof the mind. They include paraphilias such as voyeurism, necrophilia and paedophilia, where they have a significant effect on the person's functioning or pose a significant risk to others. We see no reason to distinguish those disorders from any other, and that view was shared by the Joint Committee that scrutinised the admittedly very different 2004draft Bill.
	It is nothing new for dangerous paedophiles to be detained under the Act, as their behaviour is often linked to dissocial personality disorder, or, in the current ungainly terminology, psychopathic disorder.If such people can properly be detained under the Act, we see no reason why clinicians should be barred from using the Act to treat patients whose only clinically recognised disorder is one involving abnormal sexual desires or behaviours. If that is what the clinicians concerned believe is the right approach for the individual in question, then, provided all the relevant criteria are met, we believe the Act should allow it.

Baroness Royall of Blaisdon: I shall certainly write to the noble Lord.
	I am not aware that it is suggested that the commission, or likely commission, of illegal or disorderly acts is, by itself, a clinically recognised mental disorder. Hence, the proposed exclusion is again unnecessary. It has been suggested by noble Lords, and in the evidence cited by the noble Baroness, Lady Barker, that the purpose of the amendment is to prevent the Act being used for social control. If that is the case, we are fully supportive of the objective. However, the Act already achieves this objective. This is a mental health Bill; it is not about social control. We are all aware of what happened in Russia, and noble Lords have quite rightly brought this to our attention, but this is not what this Bill is about. The most that the proposed new words in the amendment could achieve is wrongly to suggest that, in other contexts, such behaviours would be mental disorders or, worse still, that they might place uncertainty in the minds of professionals, and even the courts, about whether behaviours of this kind can be taken into account when deciding whether someone has a mental disorder.
	Redundant material should not be included in Acts both as a matter of good drafting practice and for fear that an unintended meaning will be read into any such words. The courts will assume that Parliament would not have put material in the Act if it were unnecessary. However carefully drafted is an exclusion—I know that noble Lords have been most careful in their drafting—there is always the risk of it being interpreted in an unexpected way or being misunderstood and misapplied in practice. If, as in this case, an exclusion is unnecessary to start with, we think it better not to take that risk, remembering that what is at risk is whether people get the treatment they need to relieve their own suffering and, where relevant, protecting other people from harm.
	Many noble Lords understandably raised the issue of people from black and ethnic minorities being disproportionately affected by the Act. We fully acknowledge that rates of admission and detention are significantly higher for some BME groups and that they are more likely to arrive in care through the criminal justice system. Once in hospital, some groups of BME patients are more likely than white British people to be subject to measures such as seclusion or restraint. This fuels a circle of fear which deters many BME patients from seeking early treatment for their illness. We have heard many examples of that cited today. The reasons for this are complicated and still not fully understood, but the problem has effectively been left unchallenged by government for decades. Last year, we published a comprehensive, five-year action plan for delivering race equality in access to services, experience of services and outcomes from services. A high level of resources has been committed to the plan and it has made a sound start. Bridging the system of equalities once and for all might not be easy, but we cannot be satisfied with anything less.
	However, excluding cultural and religious beliefs from the definition of mental disorder is unlikely to help. It is possible of course to have disordered cultural and religious beliefs in any culture or religion, and indeed in any person, regardless of whether they see themselves as belonging to a particular culture or religion. Such beliefs may well be symptoms of clinically recognised mental disorders, but in the absence of such a disorder, political or cultural beliefs, values or opinions are simply not mental disorders. It is therefore unnecessary and potentially a source of uncertainty and misunderstanding to exclude them from the definition.
	Disordered thinking and beliefs are central elements of many mental disorders. That these are expressed in cultural, political or religious terms makes them no less disordered than if they were expressed in any other terms. But it is axiomatic that in diagnosing whether thoughts are disordered, professionals must understand them from the patient's own perspective. However strange a thought or belief may appear to be to someone else, it is not a sign of mental disorder unless it is disordered within the framework of the person's own cultural, political and religious heritage, convictions and attitudes. We therefore do not think that this needs to be said inthe Bill.
	The noble Baroness, Lady Murphy, asked why the Government said that cultural beliefs could be signs of mental disorders. This is not what we said and indeed it would have been extraordinary had we done so. What we meant was that sometimes disordered thinking expresses itself in religious, political or cultural terms.
	In summary, Amendment No. 4 seeks to exclude various behaviours and beliefs from the definition of mental disorder. On substance misuse and sexual behaviour we disagree about the objective if those terms are meant to cover the consequences of misuse and what is currently termed "sexual deviance". On the rest, we differ only as to means, not ends. Noble Lords say that it should be explicit in the Bill that it cannot be used for what some have described as social control. We say that there is simply nothing in the Bill which would allow it to be used that way. Adding unnecessary words does nothing to alter that butdoes increase the potential for confusion and misunderstanding in practice and the risk of an unintended meaning being read into the words by the courts.
	It is for the same reason that, while agreeing entirely with what he seeks to achieve, I cannot support the amendment of the noble Lord, Lord Adebowale, to make explicit that dependence on alcohol and drugs does not preclude a person from treatment under the Bill if they also suffer from another mental disorder. I understand that this group of people is getting bigger.
	For the reasons the noble Lord has eloquently and colourfully explained, I agree that it is essential that people using the Act in practice are clear about what the exclusion for dependence means, and perhaps more importantly what it does not mean. We have tried to spell this out in the draft code of practice for England that we have issued alongside the Bill. But if the noble Lord does not think the current draft of the code is sufficiently clear, then of course we would welcome his suggestions for improving it.
	To the noble Baroness, Lady Masham, I must stress that the Bill does not exclude people who are dependent on alcohol or drugs from the Act entirely. If such a person has another mental disorder, then of course the Act applies in the normal way. That is true even if the other mental disorder is a result of the dependence or reinforces it, or if the dependence exacerbates the other disorder or makes it harder to treat. The amendment would put into words only what is anyway the case because of the absence of words to the contrary. It is therefore not necessary and while I agree with the objective, it is best not included in the Bill.
	I noted the fine words of the noble Earl, who urged me not to reject the amendment out of hand but to listen carefully to the debate which has ensued as these are extremely important issues. I regret, however, that I am going to have to ask the noble Earl to withdraw Amendment No. 4 at this juncture and I hope that I have reassured the noble Lord, Lord Adebowale, that he may safely not move Amendment No. 5.

Lord Harries of Pentregarth: rose to ask Her Majesty's Government what representations they are making to further the independence of West Papua.
	My Lords, I am grateful to the Government for allowing time for this short debate and, in particular, to the speakers who put their names down. We all feel some sympathy and admiration for the noble Baroness, Lady Royall, who has had to battle in such an indomitable way for so many hours already, and must now face a fresh subject.
	West Papua may seem far away and its problems small compared with the very grave situation in the Middle East. To its people those problems are immediate and painful, and the principles at stake are fundamental to civilised life in the modern world. The issue at the heart of this question, as in the conflict in West Papua itself, is whether a people have the right to self-determination and, if so, how we ensure that they can freely choose to exercise that right. The West Papuans are a people—the same people as thoseof Papua New Guinea on the east of the island—who obtained their independence from Britain over 30 years ago. They have no desire to be ruled from Jakarta. As a Foreign and Commonwealth Office briefing in 1969, now publicly available, put it:
	"Privately, however, we recognise that the people of West Irian (West Papua) have no desire to be ruled by the Indonesians who are of an alien (Javanese) race".
	It went on to say that,
	"the process of consultation did not allow a genuinely free choice to be made".
	That is putting it very mildly. The so-called Act of Free Choice consisted of 1,026 people being forced at gunpoint to vote for integration with Suharto's Indonesia, and this being taken as the voice of the people.
	That this is the case is now publicly recognised by the British Government. In a historic statement to this House in answer to a Starred Question in my name, the noble Baroness, Lady Symons, who was then the Minister, acknowledged that,
	"there were 1,000 handpicked representatives and that they were largely coerced into declaring for inclusion in Indonesia".—[Official Report, 13/12/04; col. 1084.]
	The question now is: what can be done to rectify this historical wrong and what is the next step? In particular, what steps are the Government taking? The policy of the Indonesian Government is to divide the country into three provinces, two of which have come into being with, in theory, a limited degree of local autonomy in each one. It has to be said plainly that this policy is not working and will not work. It is leading to increasing unrest, human rights abuses and the build-up of military forces in each of the three areas. I am afraid that it is the age-old policy of divide and rule—a policy that has a particular economic dimension in West Papua, when one province has the liquid gas. It will not satisfy the West Papuan people who wish for self-determination as a people, not rule from Java through a well-funded elite and a strong military presence. Where do we go from here? I have three questions for the Government. I leave the important question of arms sales, particularly arms that can be used for internal repression, to others.
	First, will the Government take the lead in bringing this issue to the United Nations? I do not underestimate the difficulties. A number of powerful countries have strong economic ties to Indonesia, not least in the arms trade, and will be only too anxious not to make a fuss about this matter, as they were anxious not to make a fuss about it at the time of the so-called "Act of Free Choice" in 1969. We are, of course, one of those countries. But this Government, through the noble Baroness, Lady Symons, had the honesty to admit that what happened in 1969 was a total travesty. The Government can only enhance their reputation by carrying this issue forwards with—and these are the key words—a steady and consistent policy.
	The public recognition in this House in December 2004 was only a first step. To mean anything, it must be pursued. In particular, will the Government make a public commitment to support a UN-sponsored rerun of the flawed in 1969 "Act of Free Choice", this time as a genuine, one-person-one-vote referendum, internationally monitored and giving the tribal peoples of West Papua the chance to choose freely between independence, free association or continued integration with Indonesia.
	Secondly, will the Government make more specific representations about the human rights abuses taking place, documented by Amnesty International? It has been estimated that, since 1969, more than 100,000 West Papuans have been killed and there are now some 9,000 refugees in Papua New Guinea. The Catholic Church's Papuan Peace and Justice Secretariat reported in June last year that students who had been arrested after a peaceful demonstration and been interviewed by their investigators had been denied access to legal representation and had suffered physical and mental torture. At present, there are more than 100 political prisoners in West Papua of whom I mention only two this evening, Filep Karma and Yusak Pakage, who were jailed for 15 and 10 years respectively for raising the West Papuan national flag—the morning star—on 1 December 2004, and who have been recognised by Amnesty International as political prisoners. The date of 1 December is significant because that was the day in 1961 that the Dutch granted West Papua independence, an independence which was quickly and sadly lost when Indonesia invaded the island in 1962, claiming it for themselves.
	I understand that the Government are generally monitoring the situation of political prisoners through their embassy in Jakarta, but will they specifically raise the issue of these two prisoners of conscience, Filep Karma and Yusak Pakage, with the Indonesian Government and make it clear to them that not only must they be treated humanely, but that the basis of their charge and imprisonment is totally unacceptable in any society that claims to be democratic?
	Then, thirdly, arising from this there is the whole question of freedom of speech, freedom of assembly, freedom to form political parties, freedom of access for journalists and NGOs and the importance of achieving a genuine dialogue between the Indonesian Government and the people in West Papua who wish to raise the issue of self-determination.
	At the moment the Indonesian Government lays down a pre-condition that this subject cannot even be raised in discussions. Yet that is the issue at the heart of this conflict. The West Papuans are a peace-loving people and they want to talk about what matters to them. At the moment, this is prevented by the heavy military presence and the refusal of the Indonesian authorities even to allow certain questions to be raised. Linked to this is their refusal to allow access to outsiders who raise these questions. In May of last year the UNHCR's regional representative said in evidence to an Australian Senate inquiry,
	"I can confirm that, despite repeated requests, the UNHCR has not been given permission by the Government in Jakarta to have access to West Papua".
	Other aid agencies and nearly all foreign journalists, as well as Amnesty International's fact-finding mission, have also been refused permission to visit.
	After its historic recognition in December 2004, I hope that the Government will pursue this matter with a steady and consistent policy in three ways: first, with a view to achieving a genuinely free vote about self-determination; secondly, by raising the matter of serious human rights' abuses, particularly in relation to Filep Karma and Yusak Pakage; and, thirdly, by urging the basic freedoms of speech, assembly and access, which are absolutely fundamental to any country that regards itself as democratic.

Lord Griffiths of Burry Port: My Lords, the noble Lord, Lord Harries of Pentregarth, is to be congratulated on bringing this matter to our attention. He has long championed the human rights of the people of West Papua, keeping their plight before the House and the British public for a number of years. He is to be thanked for doing so again this evening, and the least that we can do for him in this short debate is to press my noble friend the Minister to inject some urgency into efforts to address the flagrant denial of justice to the people of West Papua. The noble Lord has put forward an admirable programme and some practical suggestions. If every speaker simply does that, it might give the weight of the whole House this evening to some practical outcomes.
	As the noble Lord said, when my noble friend Lady Symons of Vernham Dean admitted in an answer to a previous debate that the 1969 Act of Free Choice was a flawed exercise, she went on to ask a simple question: "What should happen now?". She gave the beginnings of an answer to her own question by suggesting that, as 35 years had passed since the flawed referendum of 1969, it would be better to look to new proposals then being put forward than to continue to harp on about ancient events. Special autonomy legislation only recently passed by the Indonesian Government would, she said, grant,
	"70 per cent of oil and gas royalties originating in Papua—as well as 80 per cent of forestry, fishery and mining royalties—to the people of Papua".—[Official Report, 13/12/04; cols. 1084-85.]
	A truth and reconciliation committee had been set up to look into a number of the offences that people were complaining about. It would be best, said the noble Baroness, to see how the measures were embedding before we mapped a way forward.
	What she did not say was that, between 1969 and 2004, the same 35 years that were considered to have consigned the referendum to ancient history, there had been a massive transmigration programme that brought 1.2 million people into West Papua of Javanese and Sumatran origin, nearly all of them Muslims. That changed the nature of Papuan society and culture radically. The Indonesian Government implemented the same policies at roughly the same time in East Timor and with the same objective—to change the nature and allegiances of a people who were being obstreperous and seeking their rights of self-determination. Incidentally, in Eritrea, Ethiopia attempted the same business of changing the nature of the population to achieve its ultimate goals.
	The benefits of the new legislation—the special autonomy legislation—would accrue not to a Papuan population at all but to one so radically different that fewer than 50 per cent of the population were the original indigenous Papuans in the first place. The noble Lord, Lord Harries, mentioned the large number—more than 100,000 at the lowest estimates—of people of Papuan origin who had been killed in the same period.
	We have seen in the way in which Eritrea was abandoned by its United Nations overseers in the post-war period to the whims of Ethiopia a similar case of injustice. It was a United Nations set-up body that in New York allowed Indonesia to annex West Papua to itself. The Eritrean People's Liberation Army fought a long war of attrition to attain its rightful status, and I was present on the day of the referendum in 1993 when, with great jubilation, at last the Eritrean people felt that they had gained their objective despite the opposition of the international community; so, too, the Free Papua Movement may be counted on to maintain its opposition to the present arrangements and to seek the support ofthe world community in achieving its legitimate objectives.
	The 1969 Act of Free Choice was both cynical and wrong. It involved about 1,000 hand-picked people; a significant number of them were tribal leaders who were rounded up a month before the referendum and indoctrinated so that they would vote as they were obliged to, at gunpoint, on the day of the referendum. The voting exercise was overseen by, of all people, the Indonesian army, mainly. There were a couple of objective overseas observers, but they left before the vote was completed. All responsible commentators agree with that analysis. No amount of truth and reconciliation will hide or play down that basic fact.
	Indonesia has been seen by all the major playersin the West as an important bastion against communism. The United States has played a significant part in seeing the outcomes that we are discussing this evening come to pass, but our own country is associated with it and so is Australia. Even the Vatican, because of the significant number of powerful Roman Catholics in the Indonesian republic, has preferred to turn a blind eye to some of these questions on the margin of its consideration.
	In view of that, we must ask ourselves how we implement an ethical foreign policy towards this small region. The question will not go away; it did not do so in Eritrea or East Timor, nor will it in West Papua. I hope that my noble friend will help her colleagues in government to show a preferential option to those suffering injustice, as this is a case clamouring for appropriate attention.

Lord Archer of Sandwell: My Lords, together with my noble friend Lord Griffiths, I congratulate my noble friend Lord Harries on again drawing attention to a subject that for too long has represented a dereliction of responsibility by the international community. Any unlawful usurpation should evoke condemnation if international law is not to be brought into disrepute, but here there has been persecution, murder, evictions and burning of the villages of innocent human beings, while the world has looked on. Surely that will reflect opprobrium on our generation from those who come after us.
	We could debate at length the precise criteria for the right of a people to self-determination. Those debates go back to the League of Nations, but today we are spared legal hair splitting. Here, there is a population of 800,000 people, racially differentiated from the population of Indonesia, with its own history, culture, and inhabiting a clearly defined territory, yet ruled by an alien administration which by a persistent policy of repression and terror has made itself hated and feared.
	We have every criterion for the right to self-determination. The principle is declared in Article 1.2 of the United Nations charter and further enshrined in the two human rights covenants of 1966. There is clear consensus that two principles follow. First, the right includes the right of a people to decide how to exercise its choice. It is for the people to decide who their delegates are to be and what the decision-making process is to be. They are entitled to do that free from any pressures, internal or external, after such free discussions as their choice may require. Secondly, the right is continuing and not exhausted once it has been exercised, validly or otherwise. A right to choose entails a right to make continuing choices as circumstances change or simply if there is a change of mind. A third principle, while we are passing, is that the right includes a right to enjoy the natural resources of the area and to decide how they are to be developed and exploited. Article 1.2 of the international economic covenant reads:
	"All peoples may, for their own end, freely dispose of their natural wealth and resources",
	subject, of course, to existing obligations.
	The situation has a shamefully long drawn-out history of which the international community has no reason to be proud. In 1949, the Netherlands Government conceded independence to Indonesia, but vast areas had been included in the territory purely for the purposes of administration and not by any stretch of the imagination because they werea natural part of Indonesia. The Indonesian Government said that the newly acquired statehood should extend throughout that territory. The Netherlands Government said that the peoples of West Irian were entitled to decide whether they should be included in the new state or whether they should have some other status.
	Up to that point, the Papuan people had notbeen invited to participate in the discussions. The Netherlands said that the issue should be decided by the United Nations. Indonesia said that it was an internal matter, not the concern of the international community, and that it should be resolved by negotiations between Indonesia and the Netherlands, which clearly would never eventuate in an agreement. Nevertheless, the General Assembly discussed the question in 1954 and again in 1961 but was unable to agree on a resolution. It is worth pointing out that in those debates West Papua had no representation—it had no seat in the General Assembly.
	On 31 December 1961, West Papua achieved avery short-lived independence. The Indonesian Government terminated it unilaterally by military force. In 1962, Indonesia and the Netherlands reached the New York agreement, which was designed to resolve the issue. The Netherlands would transfer administration of West Papua to a United Nations Temporary Executive Authority established by and answerable to the Secretary-General. It was said that arrangements would be put in place for the people of West Irian to choose in accordance with international practice and with the participation of all adults, male and female. That agreement was approved by the General Assembly, so it was accepted by all concerned that the population of West Papua was a separate and identifiable people entitled to self-determination. I hope that, in replying, my noble friend will clarify whether the Government accept that conclusion or, if not, why not.
	The outcome of such a choice was predictable. We now know that John Kennedy's ambassador reported 85 to 90 per cent of the population as being in sympathy with the Free Papua Movement. That outcome would have left Indonesia, as my noble friend Lord Griffiths said, blaming the West. The United States was concerned that if Indonesia turned to the communist bloc there would be an outpost of communism in east Asia. The Temporary Executive Authority proved to be very temporary. It was persuaded by the United States to acquiesce in the assumption of control by the Indonesian Government. That was fatal to any hope of a fair entitlement. It led to the infamous Act of Free Choice about which both noble Lords have already spoken, and I will not repeat that. It has been condemned by international lawyers and by other authorities again and again.
	There the situation rests. The Indonesian Government introduced the special autonomy law in 2001, as my noble friend Lord Griffiths pointed out, but there has been no autonomy, and the atrocities go on. As all too often, the persecution, the murders and the incarcerations will continue for as long as the protest continues, and that will continue as long as the situation remains as it is. Any form of international action can take place only if it is initiated by a national Government. The United Kingdom Government still carry respect and influence in these matters. The question is whether they retain their dedication to an ethical foreign policy. I am sure that I know the answer that my noble friend would like to give; many of us are looking forward to hearing the answer that she is authorised to give.

Lord Avebury: My Lords, I am afraid that the short answer to the Question asked by the noble Lord, Lord Harries, is none, as the UK does not support the independence of West Papua and we were accomplices in its unlawful annexation by Indonesia. The right of self-determination, while undoubtedly a legal right, as the noble and learned Lord, Lord Archer, pointed out, is a matter of state practice in the absence of any rules for determining how it should be enforced. Therefore, is there any point now in reviewing the events that led up to the so-called act of free choice?
	In the cases of Srebrenica and Rwanda, there were formal inquiries into how those appalling tragedies were allowed to happen. The Secretary-General himself took responsibility for investigating the Srebrenica massacre, in which an estimated 20,000 people were slaughtered by the Serbian militias. However, as two noble Lords have pointed out, in West Papua something like 100,000 people have been killed since the Indonesian occupation—five times as many as in Srebrenica—yet the UN has failed to review the conduct of the bogus operation carried out under its auspices that led to this enormous tragedy.
	When I asked the Government six years ago whether they considered that an independent audit of the UN's role should be commissioned, the noble Baroness, Lady Scotland, said that she was satisfied that the study being conducted by the Institute of Netherlands History would serve that purpose. That report, by Professor Pieter Drooglever, was published in November 2005 and, as has already been said, it confirms that the outcome had been pre-determined by Suharto, who had issued instructions that nothing but a ruling in favour of Indonesia would be acceptable. The UN observers were allowed to see as little as possible and were ejected from the territory immediately after the so-called vote.
	The UN was directly responsible for what happened because it was nominally in charge from 1962, when the Dutch left, until November 1969, the date of the fraudulent act, although, as has been pointed out, from 1963 onwards the Indonesians were allowed to govern the territory. The UN returned only in August 1968 under an agreement which required it to,
	"advise, assist and participate in",
	the arrangements for the act of free choice, which was to be carried out,
	"in accordance with international practice".
	That was immediately violated by the UN itself, which failed to organise a plebiscite and, instead, agreed that the decision would be made by an assembly, whose members would be indirectly elected by an undefined electorate. As we have heard, the Indonesians chose the 1,000-odd candidates, all of whom were elected unopposed in batches, with the so-called "voters" browbeaten or bribed into approving them by acclamation. UN observers saw the elections of 195 of these stooges but, significantly, their report to the General Assembly was silent on the conduct of the operation.
	By that time, the UN team had been whittled down to a mere 16 members at the insistence of the Indonesians, and it would have been impossible for it to fulfil its remit, even with full co-operation, in a territory the size of California with only the most primitive transport and communication systems. However, members of the team did not complain when no interpreters were provided or when they had to ask permission every time they wanted to move outside the capital. They failed to blow the whistle when they saw Indonesian soldiers and officials pouring into the territory in far larger numbers than planned and exerting heavy pressure on the Papuans to choose integration and give up the dream of self-determination.
	That fraudulent process was endorsed by the General Assembly with the approval of the UK. The Permanent Secretary at the Foreign Office had recommended not entering into correspondence about self-determination, and in the UN we firmly supported the betrayal of the West Papuans, not on grounds of principle but out of solidarity with the Dutch and as a means of improving our relations with the military dictator General Suharto, who had done a splendid job exterminating half a million communists and was therefore a man to be encouraged.
	The Government may not seek to persuade the UN that there should be a rerun, as the noble Lord, Lord Harries, called it, of what happened in 1969, but they should at least seek an opportunity to get the Drooglever report upheld and endorsed by the General Assembly, and that is what I ask the Minister to agree to. In other cases where the UN has failed to uphold the rights of peoples, it has recorded and acknowledged its appalling mistakes and their tragic consequences. Will the Minister agree that the act of free choice cries out for the same treatment?
	More than that, should not the international community try to alleviate the suffering now being endured by West Papuans, unseen by human rights organisations, foreign journalists, the UNHCR and MPs, all of whom, as we have heard, have been refused permission to enter the territory? The EU Troika was invited in 2005 but declined because, I understand, at that time the Aceh negotiations were at a crucial stage. Will Ministers now ask the German presidency to seek a renewal of that invitation so that the present EU Troika can at least go to see what is happening in West Papua today?
	Unfortunately, although President Megawati made offers of special autonomy to Aceh and West Papua in 2001, there has been a complete divergence between the fortunes of the two provinces since then. In Aceh, a peace agreement was concluded in 2005 and successful elections have now been held there. Could not the lessons of that peaceful outcome be transferred to West Papua in principle—not in detail but, as has been suggested, at least by starting negotiations towards an outcome similar to that in Aceh? The present deployment of extra troops and paramilitary police is not the answer, any more than it was in Aceh. We should be saying respectfully to Indonesia that a framework is needed for negotiating a political settlement, building on the experience of Aceh, although perhaps involving not just the OPM but representatives of all the diverse communities in West Papuan society, including civil society, traditional tribal leaders, the church and the MRP. If we can ask for that, we shall be getting somewhere.

Baroness Rawlings: My Lords, I too add my congratulations to the noble Lord, Lord Harries, on securing this debate, particularly following the media reports over the festive season that suggested tensions are increasing.
	Indeed, there are claims that a force of between 2,000 and 5,000 military and police mobile brigade personnel are currently undertaking an operation in the Punjaya region. I hope that the Minister will be able to comment on these very concerning claims in her response. No doubt she recognises, as did the noble Lord, Lord Judd, that some nationalist groups fear that Papua could become the next East Timor. That has a significant bearing on today's debate.
	Papua, a name adopted in 2002, is currently a province of Indonesia. It refers to what some of your Lordships might remember from days at school as the region known as Dutch New Guinea during the colonial era. Papua—nee Irian Jaya—became a province of Indonesia following a UN supervised Act of Free Choice in 1969, the legitimacy of which, as the noble Lords, Lord Harries and Lord Griffiths, have already highlighted, remains disputed.
	As your Lordships are aware, West Papua was the major beneficiary of a nation-wide decentralisation process started in 1999 and the special autonomy status introduced in early 2002. Measures included the formation of the Papuan People's Council and redistribution of resource revenues. Those measures were welcomed but we are frustrated and disappointed, along with many Members of your Lordship's House, by the continuing failure regarding the implementation of the special autonomy law. We on these Benches believe that the full implementation will lay the groundwork for a long-term resolution to the growing crisis in West Papua and will offer stability for the province. What recent steps haveHer Majesty's Government taken to encourage the Indonesian Government to proceed with the special autonomy law? Can the Minister inform the House whether the Prime Minister raised the issue during his visit to the country last year?
	We could not have had a debate today without mentioning the human rights situation in Indonesia. There can be no doubt that it has dramatically improved, for which the administration should be commended. However, there is still a very long wayto go. Significant concerns continue to surround violations by the Indonesian armed forces, restrictions on access to Papua for journalists and NGOs and a number of cases where prisoners have been convicted for treason for displaying the Papuan flag. Many of your Lordships will find it very difficult to consider that Filep Karma and Yusak Pakage have been jailed now for 15 and 10 years respectively for peacefully raising the independence flag, and yet army officers convicted of involvement in the murder of the Theys Eluay, the independence leader, in 2001, received only three years. What steps are Her Majesty's Government taking to ensure that there will be a public debate regarding the human rights issues in Indonesia and in particular guaranteed open access for NGOs and journalists? What consideration has the Minister given to the calls for the Papuan People's Council to be fully involved with the central Government of Indonesia in working towards an acceptable solution?
	This has been a most interesting and detailed, if specialised, debate. As my right honourable friend William Hague said:
	"We have the privilege of living in freedom. But with that privilege comes the responsibility to use our liberty to speak up for those who are denied it".
	It is important to consider West Papua within both its historical and current context, as much as we have great sympathy with many of the concerns raised today—indeed, we share some. However, we do not believe that meaningful dialogue with the Government of Indonesia can take place on the basis of calls for Papuan independence.
	We support the UK Government in respecting the territorial integrity of Indonesia. We are not calling for the independence of Papua, but for an open, inclusive and frank discussion and the full implementation of the special autonomy law. We value our good relationship with Indonesia but we believe that it is dragging its feet on this issue. The Government could and should press harder to find, through dialogue, a peaceful, just and dignified resolution.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Lord, Lord Harries of Pentregarth, for introducing this debate. It is an important issue in which he has a long-standing interest. The people of West Papua are lucky to have such a fine and vociferous champion in the noble Lord.
	I have listened carefully to the debate, but must start with a clear statement that the UK does not support independence for Papua. Like the vast majority of other international players, we respect Indonesia's territorial integrity and have never supported Papuan independence. I note the comments of the noble Lord, Lord Harries, that the people of West Irian have no desire to be part of Indonesia. I respectfully point out that voter turnout of over 70 per cent in the elections last March perhaps suggests that they are becoming a little more content with the situation.
	The best way to resolve the complex issues in Papua is through promoting peaceful dialogue between Papuan groups and the Indonesian Government. Meaningful dialogue with the Government of Indonesia cannot take place on the basis of preconditions of Papuan independence. President Yudhoyono has said that he is committed to a just, comprehensive and dignified solution, including through consistent implementation of special autonomy. We welcome this important objective, and encourage him to press ahead with it. The special autonomy legislation is enshrined in Indonesian law, and was supported by Papuangroups and the international community. Full implementation of the legislation will lay the groundwork for a sustainable resolution to the internal differences and the long-term stability of the province. The UK is of course also committed to improving the well-being and political participation of Papuan people, as well as encouraging freedom of expression throughout Indonesia.
	My noble and learned friend Lord Archer of Sandwell cited the economic covenant, and many others have referred to the special autonomy legislation on oil and forestry revenue. The special autonomy legislation grants Papua 70 to 80 per cent of the royalties from natural resources rather than the tax revenue. Papua is receiving this and, to make up for the fact that it receives none of the tax revenue, the central Government pay 2 per cent more than to other provinces in Indonesia under devolution. In 2006, it received $438 million, higher than every other province in Indonesia bar one.
	My noble friend Lord Griffiths of Burry Port referred to special autonomy issues. Many such issues still need to be implemented in the legislation, but progress is being made; for example, the establishment of the Papuan People's Council and the election of a provincial governor. Legislation has been, or is in the process of being, approved on the use of Papuan symbols—essentially the flag and certain anthems—the special autonomy budget, forestry issues, protection of customary rights, health and education. Of course, there is much more to be done and we will keep pressing them to do so.
	The noble Lord, Lord Harries, asked if the Government would support a review of the Act of Free Choice. If your Lordships will forgive me, I have lost that section of my papers, so I will come back to it shortly because I have something to say on that.
	We are working with the Indonesian Government to support the most pressing economic and social needs of the Papuan people. Under Indonesia's decentralisation laws, Papua's directly elected governors and district heads have significant political and fiscal authority. The central Government have devolved control over every area but five to Papua: foreign affairs, defence and security, fiscal and monetary policy, religious affairs and justice. The UK, through the multi-donor decentralisation support facility and other projects, is working to build administrative capacity and ensure that these local Papuan governments are accountable to the people that they serve.
	I return to the Act of Free Choice. Although we recognise that it was extremely flawed, the UK has no plans to support a review of that Act. We believe that is a matter for the Netherlands and the UN. As the 1962 New York agreement was between the Dutch and Indonesian Governments, and the UN oversaw the 1969 Act, we have little locus to question the legality of either. The 2001 special autonomy law allows the establishment of a truth and reconciliation committee to look at the incorporation of Papua into Indonesia in the 1960s, which we believe indicates that the Indonesian Government recognise the need to address the long-standing problems in Papua.
	I think that my noble friend Lord Judd mentioned transmigration. Non-Papuan migrants make up about 35 per cent of the total population. However,in 2000 the Indonesian Government ended the transmigration programme in response to concerns about the ethnic mix. Spontaneous migrants continue to arrive in relatively large numbers, but there is no government programme to increase the number of non-ethnic Papuans in the region. I suggest that the special autonomy programme is therefore relevant to the lives of most West Papuans.
	DfID is closely involved in formulating the governor's development strategy, which will focus on the millennium development goals. DfID is looking to align its own funding for Papua with the governor's vision. The DfID-funded multi-stakeholder forestry programme has been working to improve land use in Papua, by supporting detailed mapping and informed policy change. Papua is also a key area of focus for DfID's HIV/AIDS programme, working through the Indonesian partnership fund for HIV/AIDS. Other donors are also engaged in Papua to improve conditions on the ground.
	The UK is also working in a number of areas to promote dialogue and improve political participation in Papua. UK-funded human rights projects in Papua include funding for the Indonesian human rights commission—to travel to remote areas of Papua to investigate alleged human rights violations—public education about rights regarding treatment by the police, human rights training for the police and providing a police complaints post.
	In respect of human rights, we do indeed have an interest, and I hear what your Lordships, including my noble friend Lord Judd, have said about the human rights situation in Papua. We believe that the human rights situation in Papua too is improving. There is little credible information to suggest that major systematic abuses of human rights are currently taking place, although I hear what the noble Baroness, Lady Rawlings, said. The major concerns are chronic low-level harassment, freedom of expression and association, and social and economic rights—as in other areas of eastern Indonesia. Of course, we will continue to take reports of human rights violations seriously; we raise these with the Indonesian Government, together with our European partners and as part of our bilateral dialogue. In response to the noble Lord, Lord Avebury, we will certainly make representations to the German presidency to resume the troika idea.
	Several Jakarta-based correspondents, including representatives of the BBC and the Washington Post, received permission to visit Papua in 2006, including sensitive areas in the central highlands. We welcome this increased access for journalists. We regularly encourage the Indonesian Government to permit journalists to visit Papua to promote better international understanding of conditions within the provinces.
	The noble Lord rightly raised the case of Filep Karma and Yusak Pakage who were shamefully imprisoned in 2005 for flying a flag identified with the separatist struggle. The Indonesian Government have obligations under the International Covenant on Civil and Political Rights and their own constitutionto guarantee freedom of expression throughout Indonesia. We encourage the Indonesian Government to implement those obligations. As the noble Lord suggested, our embassy in Jakarta is monitoring the case; it will look into it further and make representations, if appropriate.
	Several noble Lords mentioned that 100,000 people were killed. There were certainly brutal operations in Papua in the 1970s, which we deeply regret and condemn, but we believe that there is nothing to substantiate the figure of 100,000 people, but even if it were "only" 10,000, that is 10,000 too many. We continue to take reports of human rights violations seriously.
	Papua is one of the wealthiest provinces in Indonesia in fiscal terms. However, most Papuans do not see the benefits of that wealth. Papua is the province with the highest level of poverty—40 per cent of Papuans live below the poverty line—and health, education and infrastructure are consistently below the national average. Much of that discrepancy can be put down to corruption, which is serious and endemic at the local government level. The UK's projects to build local government capacity, which I described earlier, aim to improve that. We welcome the fact that, at the urging of the new governor, Papua's provincial budget is now being scrutinised by the national anti-corruption commission.
	I heard noble Lords' graphic descriptions. Papua is in many ways the last blot on Indonesia's global reputation. As the noble Lord, Lord Avebury, said, the situation in Aceh has improved, and perhaps that can be built on. The UK Government believe that the best way forward for Papua and its people is through peaceful dialogue between representatives of the Papuan people and the Indonesian Government and the implementation of the Special Autonomy Law of 2001. We will do all we can to support that process, and we will continue to raise all of these issues with the Indonesian Government. I do not know whether the Prime Minister raised them on his recent visit, but I shall find out and write to the noble Baroness.